Spring 2014 Unit for Criticism Faculty Lecture, Lisa Cacho: "Criminalizing the Dead"
Response by Margareth Etienne

Monday, June 2, 2014

[On April 21, the Unit for Criticism & Interpretive Theory hosted a Spring 2014 faculty lecture, "Criminalizing the Dead." The lecture was delivered by Lisa Cacho (Latina/o Studies, Asian American Studies. The response by Margareth Etienne (Law) is published below.]

“Excerpts from A Response to Dr. Lisa Cacho’s ‘Criminalizing the Dead’”

Written by Margareth Etienne (Law)

A group of teenagers getting stop-and-frisked on
Seneca Avenue,  Bronx, on their way home from
school on September 2012. (Photo: Pearl Gabel)
As you are all surely aware, it has become a fairly common-place observation that our criminal justice system over-criminalizes black and brown people (and the spaces they occupy). There are many versions of this claim: driving while black or brown; selectively enforced stop and frisk rules; loitering ordinances; racial and ethnic profiling. Lisa Cacho does in her work, Criminalizing the Dead, is to take this observation further and documents its application well beyond the ethnic minority criminal defendant to the ethnic minority victim. She argues that even when underrepresented minorities and women are victims of violent crimes like homicide, they are viewed not as victims but as criminals or criminals averted. Cacho notes this is especially true with the murder victim who can no longer speak her or his own narrative but whose very persons become the new embodiment of a racialized stereotype. She shows how under current law, as applied, in many cases, death facilitates the criminalization of these individuals. Yes, this gives us much to think about.

There is a lot to be said about this work but I want to share with you today a few thoughts that have been churning over and over in my mind over the last couple weeks as I have been contemplating what I, as a criminal law scholar, could contribute to this conversation. Like much engaging scholarship, Cacho has leads us to re-envision old problems in new ways.

I want to invite you to think about the legal concept of proxies and how they elucidate a point that Cacho already makes quite forcefully.

Consider Trayvon Martin, for example, and the trial of his killer, George Zimmerman. It is uncontested that Zimmerman intentionally and purposely killed Martin. Zimmerman argued at trial that he shot Martin in self-defense. Martin, who he suspected was about to commit a crime, was armed with a sidewalk that he could have used at any moment during their scuffle to bash Zimmerman’s head in. Cacho points to the Zimmerman case as one example of the “criminalization” of the dead victim, Trayvon Martin.

Mural at Venice Beach. (Photo: Rickerl)
Cacho astutely observes that the racialized “criminalization” and the character assassination is not only problematic for Martin and his case but is also systemically problematic. One way to think of Cacho’s argument is to compare it to the legal notion of proxies. A proxy “takes the place” or “stands in” for someone and is able to exercise the rights and privileges of the other. Arguably, Trayvon Martin acts as a proxy or a “stand-in” for other young African-American teens. In other words, George Zimmerman made a terrible mistake but not a murderer’s mistake. He killed Trayvon Martin when he meant to kill the class or category of a dark-skinned, hoodie-wearing, people-robbing, troublemaking teenage boys that he thought Trayvon Martin represented. Though Martin was not actually a criminal, he was a proxy for one and thus deserving of the same treatment.

A young man wearing a T-shirt commemorating the
shooting death of 17-year-old Jordan Davis.

Because George Zimmerman killed that “trope” or category of persons, he almost by definition, killed the wrong-doer in the conflict. He himself could not then be the criminal wrong-doer. That trope, that of the young African-American man (in this case) has, as Cacho puts it, been “rendered permanently rightless in the U.S.” and “denied the presumption of innocence.” So here is where we are made to sympathize with the Zimmermans and the Dunns (another case Cacho uses as illustration) because they made a so called “reasonable” mistake of mistaken identification. In his hoodie, with his gait, in the wrong neighborhood, Trayvon was “impersonating” a criminal. In Dunn’s eyes, Davis was impersonating a “dissed” macho gang rival.

As Cacho wisely notes--and she is exactly right in this – even the prosecutors and purportedly objective media have adopted variants of this view. The question in Zimmerman’s case soon became whether Zimmerman was justified in believing that Martin, unarmed, was up to no good and whether that belief was racially biased.

President Barack Obama pauses as he speaks about
the death of Trayvon Martin on July 19, 2013. (Photo:
Associated Press)
By accepting this as the relevant inquiry, the State of Florida missed the boat. What if Martin was a thief or a hoodlum? What if he was a teenager up to no good? In what world should a young delinquent be followed, tackled to the ground and shot? Why is that acceptable or justifiable? It isn’t. There is a reason that the law of self-defense permits the use of deadly force only when necessary to protect a threat to life and not merely to protect property.

Why is this important?

Cases like Trayvon Martin’s garner significant media attention. They do so in part because the victim is innocent, unarmed, young, a good student, with devoted parents. But lots of other children need and deserve protection too.

It is telling that in an early media speech following the Zimmerman verdict, President Barack Obama explained:

You know when Trayvon Martin was first shot I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me 35 years ago. And when you think about why, in the African American community at least, there’s a lot of pain around what happened here. I think it’s important to recognize that the African American community is looking at this issue through a set of experiences and a history that doesn’t go away... There are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store. That includes me. There are very few African American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me–-at least before I was a senator. There are very few African Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.

Well implicit in that statement is that these micro-aggressions are unwarranted and that these victims of discrimination are innocent are wrongly accused.

Trayvon Martin in an undated family photo. Courtesy
of Sybrina Fulton.
But here is an important truth. I spent six years as a criminal defense lawyer representing people - mostly men – mostly poor – mostly underrepresented minorities – charged with crimes. Many were petty crimes or drug offenses or other nonviolent crimes. Some were not. Here is another truth. Mostly guilty of something, even if that something wasn’t the exaggerated case levied against them at the time. This was some of the most valuable work I’ve ever done. Because the people had value as human beings despite their circumstances and their (oftentimes) guilt. They were not disposable.

What Cacho’s work examines here, and the importance of her work, is to give voice not only to the innocent victims mistaken in our criminal justice system for wrong-doers by virtue of their race or color or gender or neighborhoods. Cacho speaks up here for the benefit of those people who are not “INNOCENT” but who also deserve rights, deserve the presumption of innocence, and right not to be discarded.


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