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Chris Tomlins: Good afternoon, everybody, and welcome to our Fall Semester Jefferson lecture. My name is Chris Tomlins. I am a professor of law here at Berkeley. I’m the current chair of the Jefferson Memorial Lecture Committee. On behalf of the committee and of the greater council, it’s my very great pleasure to welcome Prof. Paul Butler from Georgetown Law Center who is our speaker this afternoon in the Memorial Lecture Series.
The Jefferson Memorial Lectures were established in 1944 through a bequest from Elizabeth Bonestell and her husband Cutler Bonestell. The Bonestells were a prominent San Francisco family who cared deeply for history, and they hoped that the lectures would encourage students, faculty, scholars, members of the extended Berkeley and Bay Area communities to study the legacy of Thomas Jefferson, and to explore values inherent in American democracy.
Included amongst past lecturers are so diverse on assemblage, the late ambassador Jeane Kirkpatrick, Senator Alan Simpson, Representative and Speaker of the House Thomas Foley, Senator Elizabeth Warren, Walter LaFeber, Archibald Cox, and quite recently, Annette Gordon-Reed, and that is to name only a few.
They’ve delivered Jefferson Memorial Lectures on early American history on the subject of Thomas Jefferson himself, but also on American institutions and policies, politics, economics, education, and law. I’m delighted that Paul Butler has accepted our invitation and added his name to our list of speakers.
Paul Butler is the Albert Brick professor in law at Georgetown University Law Center. He is widely recognized for his work on criminal justice and on race. In addition to his day job, Professor Butler is a legal analyst at MSNBC. His work has been profiled on 60 Minutes, on Nightline, on the ABC, CBS and NBC evening news.
Professor Butler is a regular lecturer for the American Bar Association and for the NAACP. He has spoken throughout the United States. He’s also a prolific writer. His scholarly work has been published in many leading journals and law reviews. His book, Let’s Get Free: A Hip-Hop Theory of Justice, received the 2009 Harry Chapin Media Award.
The Washington Post named his most recent book entitled Chokehold: Policing Black Men as one of the 50 Best Nonfiction Books of 2017. The New York Times described Chokehold as the best book on criminal justice reform since Michelle Alexander’s the New Jim Crow. It was a finalist for the 2018 NAACP Image Award for Best Nonfiction.
Professor Butler received his BA from Yale University in 1982, his JD from Harvard Law School in 1986. He holds an honorary doctor of laws degree from the City University of New York. He served as a federal prosecutor with the US Department of Justice, where his specialty became public corruption.
He currently serves on the District of Columbia Code Revision Commission as an appointee of the DC City Council. Whilst a professor at George Washington University, he was named Professor of the Year no less than three times by the graduating class. He was elected to the American Law Institute in 2003.
As Jefferson lecturer this afternoon, Professor Butler will discuss the failures of the present system and the possibilities for reform. Incarceration, he observes as a relatively recent development in the history of punishment for first modern prison was constructed in Philadelphia in the early 1800s. At that time, the American penitentiary was intended to offer a more humane and rehabilitative institution of punishment, but prisons have failed by virtually every measure. There are sights of cruelty, dehumanization, and violence, of subordination by race, and class, and gender.
We’ll hear Professor Butler suggests that the abolition of prisons could be the ultimate reform. He’ll address what might replace the prison, how in the absence of the prison we might deal with people who cause harm, and why abolition would make our society safer and more just.
As I said, it’s my very great pleasure to welcome Paul Butler to Berkeley. Please join me.
Paul Butler: Thank you first to everyone for being here. It’s wonderful to look out and see all of these wonderful faces. It’s an honor to be here at Berkeley, and thanks to Professor Tomlins for that really wonderful introduction. I also want to thank Ellen Gobler for being such a great host during my visit here. Thank you, Ellen.
It means a lot to me that this lecture is one of the ways that the University of California is observing the 400th anniversary of enslaved persons from Africa being brought to this land. There’s a magnificent exhibit of a recently discovered painting by Jean-Michel Basquiat. I saw this painting recently at an exhibit at the Guggenheim in New York, and the painting is called the “Irony of Negro Policeman, the Irony of Negro Policeman.
When they told me that the name of this prestigious lecture theories is the Jefferson Lecture, I thought to myself, “The irony of an African American giving the Jefferson Memorial Lecture,” but it also seemed fitting because I’m going to talk about abolition. Since this series is named after a person who owned slaves, I think there’s some kind of justice, poetic or otherwise, in a black person coming here to think with you about what it means to be free.
So, I’m a law professor. I get paid to be provocative. I want to make you think about things in a new and different way. I imagine a lot of people in this audience have already been thinking about or working on abolition. So, I also want to have a great conversation with you.
So, what we’re doing in this project is imagining a world that could be more just, a law that could be more compassionate, and people who can be freer and safer. So, now, let’s try to imagine that this afternoon as I make the case for imagining prison abolition. Again, I’m going to leave lots of time at the end for your comments and questions about this interesting, provocative stuff.
I did, as I mentioned, sincerely appreciate that gracious introduction from Professor Tomlins, but now, in the words of Jay Z, allow me to reintroduce myself. My name is Paul Butler, and I represent the people. That’s how I used to start my opening statement. I represented the government in criminal court in the District of Columbia, and I use that power to put Black men in prison, and Black women, and Latinx people, and poor people. Like a lot of prosecutors, that was pretty much all I did.
During the time that I did that work, I learned some things. My work as a scholar has been about what I learned. I grew up on the south side of Chicago. As a kid, I had some bad experiences with the cops, and my family had some bad experiences with criminals. I hoped that by becoming a prosecutor I could make the system work better for everybody.
So, I went in as kind of an undercover brother hoping that I could create change from within. I wanted to help protect my community from criminals, and I want to tell cops not treat me like a criminal. What I learned is that the system is too broke to fix.
As a prosecutor, it seemed like my job was to send black people, and Latinx people, and poor people to prison. Here’s the thing. That was easy work, and that’s what the system was designed to do. I became a prosecutor because I don’t like bullies. I stopped being a prosecutor because I don’t like bullies.
When I left the justice department, got the best job I ever had as a law professor, and most of my work as a law professor is focused on the theory and practice of punishment in the United States. I wrote one of the first law review articles about mass incarceration and race disparities. This was in 1995, and I recommended that people who committed nonviolent drug offenses should not get locked up.
I thought back in ’95, I said, “They need treatment, not punishment.” That was seen as a radical idea, but 25 years later, it’s not. Most people understand that to treat people who have addiction issues, drug dependency issues, we should think of it as a public health problem, not a punishment thing.
So, now, I want to take you into the lab. I want us to imagine where we will be 30 years from now on these issues when certainly many of the students in this room will be leaders across this nation and really around the world.
So, I want us to imagine abolishing prison and not my idea. The idea of abolition of prison has been around as long as prison has been around. In terms of social justice movements, we could think of Emma Goldman and other socialists in the early 1900, big prison abolitionists late in the 20th century. It was championed by Swedish social scientists, other Norwegian sociologists. Abolition was a big thing there.
In the United States, most recently, I’m delighted to say that prison abolition is a black feminist project. So, if we think of the work of Angela Davis, and Ruth Gilmore, and the woman who started the movement for Black Lives, they’re all prominent abolitionists. It’s working its way down to the mainstream. The Harvard Law Review recently had a whole symposium about prison abolition. The New York Times did a big article about the work of Ruth Gilmore.
So, what’s prison abolition mean? Let me start with what it doesn’t mean. It does not mean opening every prison door tomorrow. So, most abolitionists don’t think that we should storm the prison and let everybody go home tomorrow. So, think of it as a process of gradual decarceration with the goal of finding how close we can get to completely eliminating incarceration while finding alternative means of accomplishing any of the possible benefits of prison.
Most abolitionists can see that there’s a small group of people who would need to be supervised in some way for public safety reasons. That group is known as the dangerous few. So, the dangerous few are the folks who even under a regime of abolition would still be closely supervised to prevent them from causing physical, serious physical harm to others. Don’t know how big that group, how small it is, but remember that concept.
The idea, though, of breaking down the prison walls, I get that it sounds utopian. So, I want to argue it’s not utopian. In fact, in some ways, it doesn’t even have to be transformative or radical. I hope it is, but it doesn’t have to be.
So, I’ll make three points. One is that we need abolition to solve the problem of mass incarceration. Reform is not going to work. Second, there are alternatives to incarceration that can provide any of the crime control benefits we think prison does now. Third, to be truly transformative, abolition has to be more than just tearing down the prison walls. We have to build something up, too.
So, what’s wrong with the system now? What’s wrong with just trying to fix the … I’m not going to say criminal justice system. A lot of us have used the term now criminal legal process because there’s nothing that’s just about the system, and you’ve heard the problems. So, you know that somewhere around 1990, United States embarked on the largest expansion of a prison population in the history of the world.
How do we go from locking up 400,000 people in 1990 to 1.6 million people in 2012? It’s not like all of a sudden people started committing crimes in 2012 that they had in 1996. Sending all these people to jail was the result of legal and policy decisions, and the result is that the United States has 5% of the world’s population, and 25% of the world’s prisoners.
Look at the vast difference on this chart between the United States and the second country on this list of world’s top jailers. Look at the vast distance between the United States and Israel because we’ll come back to that.
If there is an ideal rate of incarceration, people, I think social scientists, criminologists would say it’s somewhere around 100 people locked up for every 100,000 people in the population. So, there’s an optimal rate. Some folks would say that’s what it is. They get that from looking at other countries. Lots of countries that we like to compare ourselves to are around 100, historically. Before the 1990s, the United States was also around, actually before the 1970s, the United States was also around that number of 100 people locked up for every 100,000 people in the population.
How should we feel about the fact that we lock up so many people today? For some folks, it’s not a problem. It’s a reflection of our politics or our culture or values or it’s a crime control strategy. There is, though, an emerging consensus across political lines that mass incarceration is, in fact, a problem, and different people have different theories about exactly what the problem is.
If a reformer thinks of 100 as the optimal rate, you can see that in the United States, even the rate for white people is too high, and the rate for African Americans is almost literally off the chart.
So, how are you doing in California? You all all right? Not at all. So, you’re actually doing a little bit better than the United States. Our overall rate in this country is around 660. California is in the 500s. So, better than a lot of other states, way worse than other countries.
So, the California rate is, again, different if we think about race disparities. If you’re an African American man who does not want to get locked up, California is not the place you want to be. You ranked fifth on the list of states where African American men are most likely to be incarcerated. If you want to go even more local, San Francisco and San Mateo County are the worst places in the state if you’re a black man who doesn’t want to get arrested.
I found data on arrest and, again, African American men in San Francisco have eight times greater chance of being arrested than similarly situated white men. So, San Francisco, San Mateo County are leading the state in locking up African American people.
It’s so important to understand this is about law and policy as opposed to about those men, just to state the obvious. Had a great couple of days in San Francisco in this Bay Area, Berkeley, Oakland. The African American men I’ve met have been really nice. The brothers here don’t seem more dangerous than brothers any place else.
The fact that you lock up so many of us is the result of your legal and policy decisions. It’s about California politics and law more than it is about those African American men. The good news is that those rates in California aren’t as bad now as they would have been 10 years ago. So, limited progress is being made.
One of the reasons I was excited to come to Berkeley is because I know that there’s a proud tradition here around activism for social justice. That’s another value that leads some people to abolition. 80% of people who are incarcerated now and before they got locked up live below the poverty line. Social justice, racial justice, to some people those sound like liberal ideas. There are a lot of conservatives who also are onboard with the critique of mass incarceration.
Some of our fiscal conservative friends say that it’s too expensive. Let’s say that it costs about $45,000 a year to keep someone in jail. We multiply that by the 2.3 million people who are behind bars. Yeah, it’s classic wasteful government spending. A lot of libertarians are also mad. How many federal crimes are there? The answer is that nobody knows. When people try to count, most stop when they get to around 4,000, 4,000 federal crimes.
So, people like Rand Paul think that this is government power gone wild. Then people in faith communities think that our criminal legal process should be more redemptive. They believe in second chances, even for people who’ve made mistakes. So, all of these people are calling for change and I’m right there with them. I find the racial justice arguments the most persuasive.
So, in my book Chokehold, I suggested that we ended up with this mess in large part because of anxiety about African American men. This image is by the artist Rashid Johnson, and from a series he calls Anxious Men, Anxious Men. There’s a lot of data that suggests that black men make people anxious. When folks see a black man that they don’t know, when white people see a black man, they don’t know, a part of the brain that’s associated with fear is activated.
As Roseanne Barr among others reminded us, a lot of folks don’t even see black people as human. A lot of people associate African Americans and other black people with apes. The Los Angeles Police Department used to have a code NHI when they got to call it to a black neighborhood. NHI stood for “No Human Involved.”
Here’s the thing: It hasn’t always been that way. So, here’s a three-minute version of African American history focusing on how stereotypes about black men have traveled over time. I think it’s really important to understand that history, to know why the system’s working the way it is now. Please understand I’m not making a claim that African American men are exceptional. There are lot of folks that the cops, the criminal legal process treats really badly including African American women, Latinx people, immigrants, undocumented people.
So, I’m taking a specific look at black men through an intersectional lens, but it’s not because I think that we have it worse somehow than other folks. I do think, as I mentioned, that anxiety about us explains a lot of the features of the criminal legal process now. So, let’s think about that, that history, which you know, because this is part of the observation of 1619 that African American history starts with enslaved people being brought to this country.
During this time, white folks didn’t really regard black people as violent or black men as prone to crime. This makes sense when you think about the close proximity of enslaved people to white folks, especially in the South. White folks wouldn’t have one black man around their families if they thought that we were dangerous or prone to crime. There were certainly stereotypes about black men. We were stupid or comical or heathen. It’s just that we weren’t scary.
Around this time, let’s now think about the early 1800s. We have the invention of prison as a form of punishment. First penitentiary in the world is in Philadelphia. It’s the Eastern State Prison. The concept, though, of incarceration as a form of punishment, it’s law to take call.
If you were to go to a prison in the early 1800s, you’d see a bunch of poor white people, a bunch of immigrants. You wouldn’t see many black people. Emancipation changes everything. Suddenly, in the white imaginary, African American men are threatening. We’re brutes. We’re violent. We’re apelike. We’re lasciviously attracted to white women. So, we have to be controlled by private justice.
We know that lynching occurred a lot in the South. It occurred other places as well, and wasn’t entirely condemned even in enlightened spaces like the New York Times. This editorial is from 1894. It’s been moaning Southern lynchers, but also recognizing the problem. So, we had that private justice in the South, and Jim Crow also does some of the work that slavery did.
So, there’s this sustained campaign by the greatest civil rights lawyer of all time, Thurgood Marshall, working with the greatest civil rights law firm of all time, the Legal Defense Fund. They set out to end Jim Crow, and they win. In 1954, the Supreme Court says in Brown vs Board of Education, “Segregation is unconstitutional.”
Here’s the thing: Even after they win that battle, things don’t change a whole lot, especially for African Americans in the North. So, right after that victory, 1960s, we have two things happening at the same time. We’ve got more radical folks in the African American community rising up. Thurgood Marshall won, Jim Crow is supposed to be dead, but things don’t feel a whole lot better.
Also in the 1960s, there’s a spike in crime. Firstly, in urban areas, a lot of people feel unsafe. In response to both of these developments, the Supreme Court starts giving police more and more power. So, there are these very violent civil uprisings in Detroit. National guards called in. Many people are killed.
A couple months later, Supreme Court decides a case called Terry vs. Ohio that gives the cops the power to stop and frisk. The result is now prisons are teaming with African American men. There are more black people in the criminal legal process today than there were slaves in 1850.
In California, if you want to look at the racial consequences of the work that policing prosecutors do, you can see that African Americans are much more likely to be incarcerated than other groups. Black men are especially at risk for being arrested. So, this is data from this state. Black men are less than 6% of the population of the state. Actually, this isn’t just for black men. This is black men and women, and non-binary or transgendered folks, who are poor and part of the incarcerated populations. So, black folks, less than 6% of the state, 16% of people who were incarcerated.
We have to do better that. That’s been the main point of this. How do we do that? If you think the U.S. locks up too many people, how do you fix it? Some people say, “Abolition is too radical. Don’t throw the system out. Just fix it.” So, how would that work? Let’s think about reform.
So, reform focuses on ending incarceration. We’re reducing sentences for minor crimes like these. I know it’s a small slide, drug possession, people getting in fights, that’s simple assault, minor property crimes. So, people want a reform. They focus on those minor offenses.
Here’s the thing: People who are locked up for these minor offenses, they make up less than 25% of the prison population. That’s still a lot, right? It’s still we lock up more people for things like drug crimes, other minor offenses. Then Western European countries lock up for everything.
What would be the result? So, let’s think about reform focusing on these violent crimes. So, the Brennan Center at New York University, it has one of the most ambitious proposals for reform. So, remember I said that incarceration doesn’t mean that everybody can come home tomorrow who’s locked up? What the Brennan Center says is that 40%. 40% of people who are in prison today could come home tomorrow and we wouldn’t notice. Their families would notice. Their communities would notice, but in terms of any kind of impact on public safety, 40% come home tomorrow. No impact on public safety.
How would that happen or what does that look like? What does that look like? So, again, those reform proposals focus on reducing incarceration for nonviolent offenses. ACLU, its number is 50%. 50% of people could come home tomorrow and we’d be fine. Okay. We don’t have the political will to achieve that now, right, but one day we might. There’s a lot of folks, as I mentioned, who are concerned about mass incarceration.
What would be the impact on mass incarceration if 40% of people were released? Bad news. The United States would still be the world’s leading jailer. So, if you remember the distance between us and the number two country Israel, even if we reduced our prison population by half, we still lock up more people than any country in the world.
What about the race disparities? They would actually get worse. I’ll talk about why that is in a moment. Well, we can talk about it now. Some people have this idea that it’s drug crimes that are responsible for mass incarceration. Don’t believe the hype. So, most people who are locked up in state prisons are there for violent offenses, and about 90% of people who are locked up in any prison are in a state prison. Federal prison is just a small part of the prison population over all.
So, if we understand that most people who are locked up are locked up for violent offenses, and reform is focusing on nonviolent offenses, we start to see why reform isn’t going to make much of a dent on mass incarceration.
Why would make race disparities worse if we stop locking up people for nonviolent offenses? So, in my book Chokehold, here’s what I call the ugly facts part one. I think this data reflects actual levels of offending rather than any kind of formal discrimination or selective law enforcement. That wouldn’t be true if I was talking about drug crimes. We would see selective enforcement of drug crimes against African American people, but for homicide, for armed robbery, I think arrest rates are actually a decent proxy for who’s committing the crime.
We should also understand that the vast majority of victims of these crimes are also black men. So, reform doesn’t make much of a dent with regard to mass incarceration. Reform might have the ironic effect of making race disparities work.
So, how about abolition? How would that work compare to reform? So, here, we want to think about transforming the system rather than just trying to fix it. So, abolition is a blunt instrument. When it’s fully realized, most of these people, these people have been found guilty of murder, robbery, serious drug trafficking, most of them would not be behind bars, not 100% because remember that dangerous few idea. Abolitionists conceived that small group still need to be supervised.
Imagine that that dangerous few is a subsection of the 165,000 people who are now locked up for murder. All these other guys, and about 90% of people who commit violent offenses are men. All these other guys get to come home.
Why isn’t that crazy? Well, why is abolition the frame to think about? For me, it’s partly because the central struggles for African American liberation had been movement for abolition, abolition of slavery, abolition of the old Jim Crow, and the movement for black lives frames its struggle as a struggle for abolition as well, abolition of the new Jim Crow, abolition of prison.
To think about why that’s not crazy, here are the most important two questions I’ll ask all night. Question one: What is it that you think prison does? Question two: Are there ways that we can do that without locking human beings in cages? Most people would answer the first question by saying, “Prison keeps us safe from people who would hurt us if they weren’t locked up, and prison makes people who’ve done bad things accountable for what they’ve done.” Most people who have worked in the system or have been in the system, have family members in the system understand that prison doesn’t do either one of those well.
Then the question is, can we be safer and can we make people who’ve caused harm responsible in ways that don’t involve incarceration? The answer there is yes. So, again, this is the first prison in the world. Here’s the wild thing. Incarceration actually started as a liberal reform. The first penitentiary area gets erected in Philly in the early 1800s. It’s called a penitentiary because the idea is that people will be held in isolation. The silence and discipline of holding them for a few years would give them an opportunity to be penitent, and they would leave better women and men than when they entered.
It was a liberal form because that was seen as a big step up from how punishment work before incarceration, which is that criminals were killed or their bodies were harmed or they were banished from the community or they were made to pay heavy funds. So, this incarceration thing was going to be an experiment.
How did it work? Few years, couple centuries down the line, you already know. Prison has been a miserable failure. It doesn’t work. Most young people who come home from prison wind up right back there within two years. Prisons themselves are horrible places. They’re violent, they stink, they’re dangerous, they’re noisy. It’s really hard to leave a space like that better than when you came in.
“OK,” you might say, “but at least they keep us safe, and by safe and us, we mean people on the outside, right, they’re very violent places on the inside, but if they’re keeping us on the outside, isn’t that safe? Isn’t that a good thing?”
Here’s what we know: In most places, crime has gone down a lot since the 1990s, and some people want to give incarceration the credit for that. There’s no consensus though among experts about the relationship between the rate of incarceration and the crime rate. The reason for that is we have no real idea about what makes crime go up and down. So, you’ve heard different theories ranging from how the economy is doing to demographic factors, like how many young men there are in the population at any given time, to environmental factors like lead paint poisoning, to legal factors like the availability of abortion.
It’s easy to look at any of those factors, and you see some correlations with the crime rate. Hard to make any kind of claim about calls that any of those have caused crime to go down or up. It turns out the same thing is true about incarceration. You can look and see some correlations between the incarceration rate and the crime rate, but it’s hard to make any kind of strong claim that our rate of incarceration now is responsible for the low rate of crime now.
One way we know, and this is a slide that tells where most criminologists are, they think incarceration might have a 7% impact on crime reduction. That is it. We’re trying to understand why crime went down. Incarceration explains about 7% of the decline. It doesn’t explain the majority.
One reason we know it’s not a strong explanation is because something really weird has happened in the world in the last 10 to 15 years. It’s good, but it’s weird. Crime’s gone down all over the world. As we’ve already seen, other countries don’t use incarceration the way that the United States does. So, that’s more evidence that it’s hard to explain the reduction by our rate of incarceration.
Okay, but I still get it. It seems scary because abolition raises the specter of all these criminals running around free, and that’s actually the world that we live in right now. So, if you look at this slide, 95% of people who are locked up come home at some point.
When I look at this chart, and I look at the murder rate, 11 years is the average time that someone who is convicted of murder serves. I think that’s a long time. A lot of people look at that and say, “My God! Just 11 years for murder?” The point is, even people who’ve committed the most serious offenses, they come home at some point. So, they’re back in the community among us right now.
What about the idea prison is where criminals receive their just desserts like, “Do the crime, do the time.” Those are our fantasies. So, we have an abolition that’s going on right now that nobody’s calling it that. I call it de facto abolition. So, these are some of the legal and policy reasons why most people who commit a crime are not bothered or disturbed by the criminal legal process.
So, half of violent crime is not reported. When it is reported, police and prosecutors have wide discretion not to bring charges or to plea bargain, to reduce charges. Then when people actually tell the state about a crime, what happens? The clearance rate is the percent of people who get arrested when an offense is reported. So, you can see 40% of people who commit homicide, 40% literally get away with murder or manslaughter. Homicide, actually, has the highest clearance rate of any crime.
Most violent crime, most property offenses are not clear. The police don’t solve the crime. So, if you’re doing the math, most violence is not reported to police. When it is reported, in over half of those cases, there is no punishment. When people don’t report a crime, they say it’s because they don’t think anything’s going to happen if they do report it or they say they don’t think the appropriate response to what happened is to put somebody in jail, so they’re just not going to report it.
Imagine if we had a system where when people were hurt, they could rely on the government to help them in a way that was meaningful to them. So, I’ll be transparent with you as I have been. I’m an abolitionist, but my vision of abolition extends beyond the prison. I think it has to for abolition to be transformative.
So, I’m an abolitionist in large part because of the racial justice arguments, and I think people get with regard to the death penalty the argument that the reason we can’t have or shouldn’t have a death penalty in the United States is that we’ll never have a process that can do what we asked the death penalty to do, to select out the most violent, dangerous, immoral people, and punish them by killing them. We can’t do that in the United States in a way that’s not all about race and class. I agree with that, but I just extend it to other forms of punishment as well.
My criminal law students learned that prison is for people who are the most dangerous or the most immoral. I don’t think we can make that judgment in the United States in a way that’s not all about race and class, but you could ask, “Well, what’s the problem with incarceration if it keeps some people safe or makes some people responsible for what they’ve done? What’s the problem with incarceration for people who’ve caused harm to others?” I’ve already acknowledged that I think the people who get arrested for these offenses are mainly guilty. So, why shouldn’t they be punished?
Any level of incarceration will cause great human suffering. It will stigmatize the United States as a democracy. In favor of going all the way, I want you to think about the ugly facts part two.
So, these numbers, tragic as they are, actually obscure how dire the situation is. Most African American children are raised by an African American woman who is not married. Her average net worth is $100. So, I want to say that black men are not committing these crimes because we’re black. Living in a high poverty neighborhood and seven out of eight people who live in high poverty communities are black or Latinx. Living in a high-poverty community places one at risk for being a victim or perpetrator of violent crime.
One of the ways that abolition is under theorized is exactly what would be abolished. So, let me finish by explaining why if abolition only means closing the prison doors. It’s a useful and important intervention, but it doesn’t go far enough. For abolition to be transformative, it has to do more than just tear down the walls.
Here are the comparison with earlier abolition movements is instructive. So, W. E. B. Du Bois, he understood about the abolition of slavery. If all that means is going to the fields in the big house and telling the enslaved people they’re free to leave the plantation, he said that wasn’t going to work.
Abolition, in order for it to be meaningful, had to be a positive vision. 40 acres in the mule is one way that people envision abolition as a positive project. It never happened, as you know. So, we have to imagine what the positive aspect of prison abolition would be when we tear down the bars, what will be built up instead. I’m really anxious to get your ideas about that.
Near the end of his term, President Obama endorsed what he called a Marshall Plan for high poverty communities. So, if we think about prison abolition plus the Obama Marshall Plan, you can think about whether that would be transformative.
So, last thing to think about is how we might make this happen. Let’s think about some reforms of resistance to the current status quo, and then look forward to a great discussion. So, if we think about African American forms of resistance, here are three that get talked about a lot.
In the movement for Black Lives, there’s a lot of skepticism about law. Can the master’s tools dismantle the master’s house? Among liberals, I think there’s guarded hope that the law can do some good. They look at things like affirmative action. The voting rights act say, yeah, the law really can help. Some people are more cynical. It’s against the law to discriminate on the basis of race.
African Americans experience discrimination in every market that we enter, whether it’s trying to get a taxi, trying to get a mortgage. So, in that sense, the law doesn’t work. Responding to state violence with violence has been another theme of black resistance. Virtually, every time African Americans have abandoned the nonviolent protest and petitioning the state, and instead taking to burning things in the street, most every time we’ve done that, it’s been because of something that the police have done.
It’s like black people say, “We can deal with convict leasing. We can deal with poison water. We can deal with segregated schools, but there’s something about feeling under attack by the government that’s supposed to be protecting you.” That marks this visceral outrage.
So, in Chokehold, my book, I suggest that violence is sometimes been effective at things like getting the justice department to come in and look at a local police department. If violence means hurting another human being, I discourage violence because I don’t think it would work, and because I think it’s immoral.
A third way some people say is capitalism. That’s what African Americans need to be focused on. So, watch this. You’re going to see the world’s biggest pop star and she’s going to portray the race and gender situation in dire terms. So, you’ll see images of police violence, Hurricane Katrina, poverty. She’s especially concerned about black women. She thinks if black women don’t get organized, they’re going to be eliminated. So, things are really bad, but listen. Listen to what she thinks the solution is.
Best revenge is your papers. Papers is money, and that’s a consistent theme in race discourse about resistance. Forget about law. Some people say, “Black people need their own businesses.” Financial success is the key to the cage. Here, African Americans are often unfavorably contrasted with Asian Americans or with black immigrants from the Caribbean or Africa. The idea is those groups also experience race discrimination, but you don’t see them whining about civil rights. They have their own businesses, they make that money, and that’s seen as somehow blunting the effect of white supremacy.
So, again, we can think about whether you’re persuaded by any of those three ways. In the end, the goal is what this still from Beyoncé’s video says, “We need the police to stop it, to stop killing black people, to stop beating us up, to stop arresting us when they would not arrest white people, to stop treating us like subhumans.”
This is a song that you’ve heard a million times. Listen to it one more time and imagine it now as an anthem about abolition.
What do you think? Can we make this happen in the United States, this kind of transformation? Yes. I want to say, “Yes we can.” Yes, we can in the name of of Audre Lorde, and Rosa Parks, and Fannie Lou Hamer. We’re the people who invented hip hop, and gospel, and jazz. We’re the country that gave the world the internet, Amazon, Google. Transformation is what we do, and it’s especially what the struggle for race justice has been about.
Again, if you don’t believe me, this is the last slide I’ll show, maybe you’d believe the former president of the United States. He’s in Selma, Alabama. It’s 50 years after the police beat up activists who were just trying to get Africa Americans the right to vote. He was thinking about what it is that African American people do every 100 years or so, which is to come along and save this country’s soul. This is what he said about transformation.
What greater expression of faith in the American experiment than this? What greater form of patriotism is there than the belief that America is not yet finished, and we are strong enough to be self critical, that each successive generation can look upon our imperfections and decide that it is in our power to remake this nation to more closely aligned with our highest ideas?
Remaking this nation is the project. This is Leisha Evans being arrested for protesting the killing of an unarmed African American person in Louisiana. I like this photo because I think she looks like a superhero. Justice Clarence Thomas said that when he was a judge in D.C., sometimes he would look out of the window of his chambers and he would see all these black men going to criminal court in chains. Justice Thomas said he would think, “There but for the grace of God, go I.”
President Obama speaking at the NAACP convention a couple of years ago, same phrase. He said, “There, but for the grace of God, go I.”
My friends, the determination of who goes to criminal court in chains should not be so fortuitous, should not depend so much on race and class. As long as it does, we need to think about transforming, not reforming. We need to dream big. Thank you. Thank you. Thank you. Thank you very much. Thank you. Thank you.
I think we have time for comments and questions.
Audience 1: I’m a community college instructor, and I had the great pleasure of teaching this semester at San Quentin, and it’s been transformative for me, and I really loved your lecture, but I wanted to ask you about our governor in California. Some people are excited about him, but we saw the statistics on California. Is he doing some good things or is he in the bad area?
Paul Butler: Your governor? “Why men great till they gotta be great?” in the words of Lizzo. So, I think we see a lot of politicians who have progressive values and understand the wretches of mass incarceration, and that the violence of the police is a lot about race and not so much about public safety when it comes to doing the most. They’re still weighed down by the politics, I think, of the criminal legal process.
The ways that most politicians still understand getting volts is by being tough on crime. So, I think we see some progress, including in California. In some ways, your role model is for the rest of the nation, and that you’ve reduced your prison population because you had to because of a court order. In most areas, crime has continued to go down.
When we wonder what happens when people come home who otherwise would be locked up, you are an example of the reality that it’s not going to make crime go up if we let a lot of people come home. Again, a lot of politicians are reformers. They’re not transformers. Reform is good work. It prevents the police, for example, from beating up and killing as many people as they would without reform. At the end of the day, it’s not transformative.
Audience 2: Hi. My name is Eileen, and I wanted to ask you and, again, thank you for a very moving talk. What would you like from us as a community? What three things you might mention that things we could do to step up given how rigged the system is? I’m sorry, but that’s kind of how it feels, rigged, the police and the prison system seems, and it’s stacked against people in poverty. What are three things, if you could ask us in this audience, even though how different we all are, would you ask of us?
Paul Butler: Yeah. So, in my book Chokehold, I have a bunch of suggestions for things that people can do depending on their commitment and other restraints that they might have. So, on the simplest level, if you want to reduce the risk of kids getting locked up, if you help kids graduate from high school, that’s going to substantially reduce the risk that they’re going to get locked up. There are efforts going on in communities to make interventions that help people avoid the criminal legal system.
Another is to help young parents, young fathers and mothers learn how to take care of their kids in ways that will reduce the risk of them going. So, these are the things that in the African American community we’ve been doing for a long time.
Again, it’s treating the symptom, and it’s certainly the reason that there’s so many young African American people locked up isn’t because we’ve had bad parenting. Again, I come from a community that’s extremely resourceful and extremely resilient. So, to the extent that we’re doing things that are working on the people who are the subjects of the process, again, that makes a difference in individual cases, and so it’s important because it prevents some people from being in the system. It’s not transformative as well.
The transformation I think depends in part on your ideas about how we change, how does change happen in the United States. It’s a political science question, right? So, I’m not sure lawyers are the people who are going to lead the change because lawyers are, with the twos were given reformers. We think about activism, right? We think about folks in the movement for Black Lives, who understand everything I just said. That’s one of the places that I learned it from.
So, if you go online and look at the movement for Black Lives, look at their platform, they have a number of suggestions for things that we can do to create transformation and, they understand that it’s important to work on the police and prosecutors, but at the end of the day, if you just work on those, you’re also treating the symptom, and the disease they diagnose is white supremacy, patriarchy, the way that those intersect.
How do you crush those is a question that we need all of these beautiful minds to work on together. The concern is if you don’t fix patriarch, if you don’t fix white supremacy, then the disease is going to mutate like it did from slavery to the old Jim Crow, to the new Jim Crow. It will just mutate to something else. So, that’s why the project has to be larger than just prison.
Audience 3: Hello, Professor Butler. Thank you again for your talk. My name is JD Kemal Deavers. I’m a Cal alumni. My question is about the systems that would replace the prison system. Our scholar is considering the ways of traditional societies and how they would handle criminals in their society or people who commit crimes.
Paul Butler: Great question. It anticipates an answer to a question that I imagine is coming. What about the police, right? If you abolish prison, do we still have the police, and what would the police do? To some folks, abolishing the police sounds even scarier than abolishing prison, but that’s when we look to what other cultures have done, what other countries have done.
In the United States, if you are at risk of being harmed or if you’ve been the victim of some kind of crime, we’re trained to dial 911. We know that often the reason we’re dialing 911, if the response is going to be as it is someone with a gun showing up, and the power to arrest, that that’s going to make things worse, not better. Often, people dial 911 when they do need some kind of intervention in order to be safe.
o, then the question is, “Well, what about the rest of the world, where, in many places, you can’t call 911? So, what do those other cultures, countries do to keep people safe?” I think learning about those processes, sometimes it’s calling an elder, calling someone who’s respected in the community because, again, if we imagine why people dial 911, often it’s about a crisis in a relationship, relationship between people who are partners or family members or neighbors or business associates. There’s a beef.
People call 911 when they are in mental health crisis or see someone in mental health crisis. So, the idea of having responders who don’t look at it as a criminal problem with the answer being locking somebody up is one that is exciting and creative and, again, about learning from those other cultures.
So, again, I think there’s some exciting work going on in communities where people feel that sometimes they need some kind of help, but they don’t trust the police. So, we can think about transgender women of color, who are victims of police violence, but also victims of private violence.
When they need help, what do they do? We can think about undocumented women who may be the victim of domestic violence, and they might need some help, but they’re not going to call the police. So, part of this project is, again, imagining ways to respond that don’t involve calling the people with guns.
Audience 4: Hello. Thank you for coming. I enjoy your work on MSNBC, and mine’s just a comment. I am a retired corrections employee. I worked 25 years in California prisons. I worked for prisons for 12 years, and I did 12 years as a parole agent. I retired as a parole agent. What I think the problem is, is that we aren’t giving people second chances. They come out, they can’t get housing, they can’t get jobs, things. Those are the barriers. Case in point, like the fires that we have here, those are inmates fighting those fires. They want to come out. They want to be firemen and they can’t get the job.
One of the things I think people can do is to volunteer in your schools. I do not like to see police cars on the campuses. I do not like having police officers managing our classrooms and that’s what’s going on. So, I want to see more people, volunteers on the schools. I want to see, even if you think you don’t have a skill, you have a life skill that you could teach a young person. So, those are some of the things, simple things. Adopt a school in your community and just go up there. You are a stakeholder and we need to start acting like stakeholders, as well as voter education.
The notion that our vote doesn’t count, I hate to hear people say that. It does count, especially locally. So, the sheriff is an elected official, the DA is an elected official, and we need to start educating ourselves about that and about the judges.
Paul Butler: Yeah. Thank you for your comment.
Audience 5: Yes. I have two very brief points I want to make and two very brief questions. So, I’m letting you know I will be brief. I think the criminal justice system, and I’m sure you won’t disagree, is merely a subset of the system of white supremacy in the United States, and I considered the police the street enforcement arm of white American racism.
You’ve talked about Obama. We hear about these Trump and other Republican dog whistles, but Obama and Bill Clinton had their dog whistles, too. You’re probably just as familiar as I with Bill Clinton’s dog whistles. Obama’s dog whistles, as he did the last time he came to Oakland, is that whenever he goes before a black audience, whether it be at a church, whether it be in front of community center kids, he always skulls black people for the white cameras. That, too, is a dog whistle.
My two brief questions. In the blurb I read on your book, you referred to something that’s very popular for people to say that the police are afraid of black men. I would say that there’s, and this is a question, I would say this is giving the police way too much credit. I would say, as you acknowledged, that black people live under a system of oppression.
So, it’s not necessary for the police to be afraid of black men. I had been arrested for every kind of wild black in the last time for jogging, wild Black in my own neighborhood, so to speak, and a year ago, chic, very affluent, overwhelmingly white neighborhood, unfortunately, in Rock Ridge. Many people here will know where that is.
So, I’m wondering if we can perhaps get rid of this notion that in a racist system the police are afraid of black men because they certainly have no reason to be afraid of me, and I don’t believe they ever were when they arrested me. By the way, the black cop or the black and white cop, as N.W.A. says, “Black police showing up for the white cops, the black cops left the hand cuffs on me.”
The last thing I’ll say is of … Ooh, I can’t even read it. Maybe I can. Yeah, I’m sorry. Oh, I’m sorry. Black on black crime. Many people consider this a problematic statement and every time you talk about it to the police, the more conservative the audience viewership is. They always say, “Well, what about black on black crime?”
So, do you think that’s problematic even though you apparently used it in your book? I’m not sure, and if you could answer that.
Paul Butler: Yeah. So, again, in my book, I don’t say that I think that the police are afraid of black men. I think the problem is more nuance than that in some ways, and in other ways, a lot rougher. I think that our criminal legal process gives the police extraordinary power, which they selectively deploy against African American people, and I wouldn’t describe the reason for that as fear.
I did make a point that lots of folks have anxiety around African American men and that in part explains the response of the Supreme Court and other actors in the criminal legal process. Again, it’s so important to understand I don’t mean to making a claim that African American men are exceptional in ways that don’t apply to other groups.
So, again, transgender women, especially transgender women of color, undocumented people, Latinx people, they all have important concerns about cops, but I do think when we ask how we ended up this way with so many people locked up, with the police so violent, with prison conditions so red shit, the answer has a lot to do with anxiety about African American men.
In Chokehold, I talk about that phrase, “black on black crime.” I used it in part to illustrate how our ideas about violence are raised. So, if we say, “black on black crime,” everybody knows what we’re talking about. We don’t have an expression called Asian American on Asian American crime or white on white crime. Reality is that crime is like most other social transactions in the United States. It’s segregated.
So, most people who are victims of black violence are other black folks, and particularly African American men. I think a lot of times when we imagine victims or survivors or crime, we have an image of a white woman in our mind. If you want to be more realistic, think about a young black man. That should be your poster man for who’s likely to be the victim of a violent crime.
So, again, it’s interracial. About 85% of people who are white, who are victimized by a criminal, 85% of the time it’s a white offender. So, hold that in your mind. At the same time, hold in your mind the reality that black people are at vastly disproportionate risk for crime as a victim, and crime as a perpetrator, not all kinds of crimes, but certain kinds of crimes.
There are crimes that African American men commit disproportionately, and it’s important to think about interventions that would matter at the same time as we understand how rigged the system is.
I guess the last thing I’ll say is that I understand your concern about President Obama, and if we think about this anxiety about African American men, it’s an anxiety that not just non-black folks have. A lot of times, African Americans have the same anxiety. If you think that we’re the problem, if you think that if we just pulled up our pants, we wouldn’t have to worry about being stopped and frisked or going to jail, then the answer is going to be to fix black men.
I think if you look at some interventions like black male achievement programs, some versions of My Brother’s Keeper, that’s what those programs are about. They’re about fixing black men.
The last thing I’ll say because you asked a couple of good questions, so just really quickly, what about this idea of black police officers, and how they are situated in this stuff? So, I have a lot of African American friends who are prosecutors, police officers, Latinx folks who I know who do that work, and they view it as a form of racial justice.
They tell me, “Paul, I can’t win.” Back in the day, the complaint was that 911 is a joke. Well, guess what? 911 ain’t joke no more, and I’m responsible for it not being a joke. So, yes. I selectively enforce the law in black and brown communities they say because that’s the community that I come from.
So, if you’re interested in this idea in the Academy, the person who’s made, it’s Randall Kennedy, but it’s the same stuff that people like Rudy Giuliani and President Trump said that the racial injustice is a lack of law enforcement in the African American community, and that law enforcement is a public good. It’s like a park. It’s like a library. Why would anyone complain about having too much of it? So, again, I don’t agree with that response, but I understand it.
Audience 6: Hi, everyone. I just want to say I admire your work.
Paul Butler: Thank you so much. Thank you. Thank you.
Audience 6: Still processing what you said about your cop friends. Sorry, Hi. I’m wondering if you could speak … You were talking about we need to do more than break down walls, and I completely agree. I’m wondering, I feel like because of people like Ruthie Gilmore and Jackie Wing, I’ve learned a little bit about incarceration, and what the marriage of technocracy and police state looks like for our future. I’m wondering if you can speak about e-carceration.
Paul Butler: Great question. I’m going to be really quick because we have a great reception coming up, so I appreciate folks who have questions. I’ll answer really quickly, and then I’m happy to talk with folks one-on-one. So, I suggested that we could actually do abolition in a way that’s not transformative, and we will do it one way or the other. We’re mostly to do it in non-transformative way.
So, again, 25 years ago, I just started my career as a law professor, and if I would’ve come here and suggested that we shouldn’t lock up people for drug crimes, a lot of you would have agreed, a lot of you would not have. Again, height of the crack epidemic, a lot of you would have thought that I was crazy.
Now, if I’m thinking about abolition, I guarantee you in 25 years it will be a common place, but here’s the thing. There’s a way that we can do it, a way that I want to suggest we’re likely to do it that removes the bars and replaces them with technology. So, no more cages, but ankle bracelets and GPS surveillance. Again, using technology to do the work that bars do now.
How should we feel about that? It would be better, but it wouldn’t be transformative. It would be better in the way that incarceration was a step up from killing people. Incarceration wasn’t transformative. So, e-carceration is the way that activists refer to the specter that you imagine, and e-carceration isn’t transformative. The way to do abolition in a transformative way is, again, for us to theorize the mule, what’s the equivalent of the mule. We’re not just telling folks, “You’re free to leave the plantation. You’re free to leave the penitentiary.” What do we build up in its place?
Audience 7: Hi. My name is Ted. Thank you again for your talk. It was very persuasive. I have I hope not too naïve a question. I imagine trying to go out to other people and say, “Well, hey, I heard this great talk about abolishing the prison system,” and the question I imagine somebody asking me was, “OK. Suppose I went out on the street and pulled a knife and said, ‘Give me your money or your life,’ and they gave me their money and I ran away and I got caught. If I don’t go to prison, what happens to me?”
Paul Butler: So, abolitionists, at least this abolitionist understands that people need to be safe, and one of the primary responsibilities of the state is keeping its people safe. Then the question is, how do we do that? When we are using incarceration as our example, the first thing to understand, if it’s designed to keep us safe, it’s woefully ineffective. So, the reality is that the odds are vastly against the person who commits the kind of crime that you described being caught and incarcerated.
Again, many times, the crime is not going to be reported. When it is reported and the police are trying, sometimes, they’re going to make an arrest, and less than 50% of the time for a crime like that, armed robbery, probably less than 40% of the time. So, if the idea is the reason that people don’t commit crimes is cause they don’t want to go to prison, I think most people who are at risk for committing a crime have a realistic understanding that it’s unlikely that they’re going to go to prison.
The question you asked is, “Well, what about the few that get caught? What should happen to them?” Again, there are amazing projects all over the country that are working on that issue. So, in Brooklyn, there’s a community-based project called Common Justice, and it has a deal with the District Attorney in Brooklyn and Bronx. So, when people get prosecuted for violent crime, if the victim agrees, that case comes out of the criminal legal process, and it goes to this restorative justice model at Common Justice.
So, it could be a year, a year and a half, where the person who’s caused the harm has to take steps, get the kind of care that he needs, and most of the time it’s a he, that he’s not going to cause that harm again. It could be therapy. It could be healthcare, job training, school, a bunch of practices that demonstrate that he’s putting himself in a position where he’s not going to cause harm.
He also has to make it up to the victim in a way that’s meaningful to her. Victims have to agree for a criminal case to be diverted into this restorative justice model. In Brooklyn and the Bronx, victims agree because they know that if the resolution from this date is to lock this guy up for two years, and two and a half years, that’s not going to do him any good. It’s not going to do them any good.
So, at the end of the day, when we think about reform, I like the slogan “Smart on Crime,” evidence-based solutions. So, when we compare this restorative model, this restorative justice model to incarceration, guess what? It works better. If we look at people who go to jail in these situations, again, if they’re young, within 18 months, they’re going to be right back in jail.
If you compare that to people who are in this restorative justice model, they have significantly less risk of winding up back in jail. So, at the end of the day, public safety is an important reason why we should be abolitionists.
Audience 8: Thank you. So, my name is Diana. I just wanted to go back to one of your points when you’re talking about forms of resistance, especially resistance. I wanted to ask about resistance by financial success because from what I’ve seen, I don’t think that it’s effective, and I think it even adheres to white supremacy because it’s another reason that the system can place blame on victims of mass incarceration. What are your thoughts?
Paul Butler: Yeah, I agree. I understand that the theory or the argument, and I certainly also get that there are other groups who are victims of discrimination, who are victims of white supremacy, including black folks who come to the United States from Africa and the Caribbean, Asian Americans, who don’t have the level of involvement in the criminal legal process that folks like native-born African Americans have. I get the urge to come up with facile explanations.
I’m like, “Well, they understand that they have to work hard in order to achieve their American dream.” Again, it’s another form of victim-blaming to say that the reason that so many young black men are in the system is because of their own frailties or problems or performances of masculinity. Again, I don’t think that the problem is African American men or African American people. I don’t think the solution is if everybody would just get a job or open a business that that would crush white supremacy or defeat their problem.
To credit that argument, people ask, “Well, what would you say to your girls or your boys? What do African American parents tell their children?” Again, that’s fraud, right? You certainly can’t say that the police are your friends, but you also have to, I think, give them some hope. So, then you say, “Well, there are ways that you can reduce your risk of going to prison.”
Often, those ways are fairly kind of conforming ways. They’re what some people call the politics of respectability, and I get their concerns about those. So, again, it’s a complicated issue, but I agree with you. I don’t think that resistance in the form of capitalism is going to be an effective response to the problem of white supremacy.
Audience 8: Okay. Thank you.
Paul Butler: So, two more questions and then we’ll be done or one more question it looks like,
Audience 9: Okay. My name is Nancy, and I was late. I really appreciate what you have said. I don’t know if you’ve touched on the subject of commercial prisons. What percentage of people are in commercial prisons, roughly, and the fact that many or it seems like legislators are invested in these and that’s going to be make it hard for your vision to come about?
Paul Butler: I think you’ll be surprised of the answer. The answer is around 15%. Around 15% of people who are incarcerated are in private prisons. The vast majority of people who are locked up are in facilities that are operated by state governments. About 10% are in facilities that are operated by the federal government.
It certainly can’t be the answer that rather than private corporations operate prisons, we need the government to do it because the government’s doing it right now, and the government is making a horrible mess of it. So, when we look at great films like 13th, I think sometimes we overestimate the private prison problem. Just as when we read books, great books like the New Jim Crow, we often give more weight to the war on drugs as the driver of mass incarceration than it actually deserve.
It turns out that these problems are quite difficult. So, just replacing private prisons with public prisons isn’t going to provide the transformation that we need. Just ending the war on drugs isn’t going to provide the transformation that we need.
I guess the last thing I’ll say since we’re done is that you can provide the kinds of transformation that we need by your work on these issues. Sometimes I wonder, like back in the day, during earlier struggles for racial justice, what I would have done. I think if I had been a slave, I hope that I would have been one of those folks who led uprisings. At least I hope I would have run away.
Reality is most enslaved people didn’t do that. Then during the earlier civil rights movement, I hope that I would have been one of those people who marched with Martin or took it to the streets with Malcolm. The reality is most people didn’t do that, including most African American people.
If you want to know what you would have done back in the day, ask yourself what are you doing right now. I think your presence here, your attention, your concern, your great questions is evidence that you understand the problem. Hopefully, I’ve helped you think about the need for transformation. So, thank you for being here.
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