IMHO: Is Trayvon Martin the New Dred Scott?

The American criminal justice system did not fail in the Trayvon Martin case. On the contrary, it worked exactly as it was designed to by protecting white life, liberty, property and privilege – at the expense of black and brown bodies taken captive by brutal force and regarded as less than human beings.

Revolutionary poet Jose Marti observed that to be “genuine” is to be “radical.” And to be radical, the Cuban bard urged, is no more than to “go to the roots.” So let’s take a genuine, good look at the institutional roots of these bullet-riddled, bloody branches our children swing from in America today.

Rewind: From Sanford, Florida, back to Dred Scott versus Sandford.

On March 6, 1857, the United States Supreme Court ruled: “Any person descended from Africans, whether slave or free, is not a citizen of the United States, according to the Constitution.” A war, constitutional amendments and a transformative social movement engaging non-violent, civil disobedience attempted to bury that misguided decision. The institutions in our midst, however, are very much possessed by its ghost.

Despite the work done to challenge that historic decision, its underlying rationale remains. Its basic principle persists: Blacks have no rights American citizens are legally bound to respect. The court didn’t kill that. They made it stronger. More sophisticated. Later it learned to dress up in this neo-slavery drag called colorblindness: “Racism?! Not at all. Neither George Zimmerman nor his race card-less prosecuting attorneys even noticed that “suspicious” boy he stopped to frisk was black! Was he?”

And yes, President Barack Obama: Your delayed response, triggered undoubtedly by the massive response and public outcry around the nation, only leaves the world wondering if you even care.

Hunger strikers in California prisons have their doubts. As do those held hostage and tortured under the U.S. flag at Guantanamo Bay prison. Ask Yasiin Bey, the hip hop artist and actor formerly known as Mos Def, what’s happening with the brothers incarcerated there: 44 Muslim men are having their bodies penetrated daily. They were force-fed meals to fill their bellies through tubes – during the holy month of Ramadan.

It is these legal and historical roots that give license to cops and gangster vigilantes alike to shoot and kill black and brown men and boys without consequence. In the words of pioneering prison activist Eddie Ellis, president of the Brooklyn-based Center for Nuleadership on Urban Solutions, this principle was at play, “when the Sanford police initially declined to arrest the killer or even investigate the killing of this Black youth.” That’s the Dred Scott principle in practice.

Not to make an affront on the post-racial election after-party, but this is the very sobering reality Derrick Bell was calling to our attention when he wrote, “Much progress has been made, but things remain the same.” The continuing assault on black and brown communities – in the streets and the courts, via racial profiling and racialized hyper-incarceration – is a painful reminder of the high court’s decision over a century and a half ago. Not only was Scott denied freedom, but the court declared Blacks had no claim whatsoever to citizenship. We were possessions, not citizens, and as such we possessed no right to bring suit in court against any white man.

Fast forward to today.

As the summer of 2013 began to boil, the Supreme Court ruled as if those racist principles and practices that have made this nation less than democratic are all dead and gone. If race lost its relevance some time after Dr. King was gunned down, nobody told the cops who shot and killed Oscar Grant and Timothy Stansbury. If police officers murder innocent, unarmed black teenagers and get off ‘Scott’ free, why wouldn’t wannabe-white cop civilians respond to the blackness they find so threatening in the very same way?

In a nation boasting the current world record for civic death, exactly who has gotten to that promised land by imprisoning more of its poor, uneducated, mentally ill and addicted than any other in history. The U.S. is home to 5 percent of the human race, but incarcerates 25 percent of those in prison. How many of the nearly eight million in jail, prison, on parole or probation have lost the right to vote or have been otherwise disenfranchised by the concentration camps holocausting us in these United States?

President Obama calls for peace without justice after yet another innocent child is hunted down and slaughtered for sport. Cops and robbers. Cowboys and indians. We are outraged, but unsurprised. From the violence in prisons like Rikers and Guantanamo, to the profiling murders of the Drug War and the Drone War, the killing of black and brown youth has never been a crime to America. Perhaps we should all be further outraged by our lack of surprise.

As forward-thinking as New Yorkers consider ourselves to be, New York State is one of the only states in the nation (North Carolina is the other) which still automatically prosecutes 16- to 17-year-olds as adults. New York prosecutes 13- to 15-year-olds charged with certain offenses as adults. These young people are subject to lifelong criminal records and devastating consequences such as deportation, barriers to employment, denial of educational loans, and loss of housing for themselves and their families.

Not only is this practice more costly each year than sending teenagers to Harvard, Stanford, Columbia or NYU, but it also fails to serve any deterrent, rehabilitating or restorative purpose. It actually returns teenagers to prison at higher rates than those prosecuted in juvenile courts. More than a century and a half of prison research by the Correctional Association of New York suggests raising the age of criminal liability is but a necessary a first step. Until we do so, on our watch the lives of children are being claimed every day in our streets and iron cages.

I began working in upstate New York’s prisons back in the 1980s and have no doubt that prosecuting youth as adults allows their most basic human rights to be violated. It should be much more widely known that the violence and terror minors experienced daily in U.S. prisons egregiously violates the United Nations Convention on the Rights of the Child. In 1990, those international standards were ratified by all voting nations of the U.N. General Assembly except Somalia and the United States. On the other side of the cell blocks, the “stop and frisk” practices Mayor Bloomberg and the NYPD have tried to defend use of were ruled unconstitutional by a federal judge just this week in a class action suit by the Center for Constitutional Rights titled Floyd versus the City of New York. Only time will tell whether this ruling has a sustained impact on the blocks of this city and others nationwide.

Unless we effectively organize our power now and mobilize a more radical and systemic transformation of the prison industrial complex, rather than more bandaid-like reforms of policing and prisons, we can expect more young blood to be spilled in the cell blocks and on our streets.

Legendary artist and activist Harry Belafonte recites a worker’s lyric that is profoundly inspiring to me on this score: “Calculate carefully and ponder it well/and remember this when you do/my two hands are mine to sell/they made your machines/they can stop them too.”

That is the power in our hands.

Bryonn Bain began working in New York prisons in the 1980s. After teaching in the Dramatic Arts at Harvard University, Bain returned to the nabe to launch the Prison Education Initiative as a New York University Scholar/Artist-in-Residence. His internationally-acclaimed hip hop theater production, LYRICS FROM LOCKDOWN, executive produced by Gina and Harry Belafonte, helped kick off the Center for Constitutional Rights’ class action law suit in which a federal judge ruled on Aug. 12, 2013 that the NYPD’s stop-and-frisk policies and practices violate the Fourth and Fourteenth Amendments.