The Criminalization of Black Resistance to Capture and Policing

Abstract

The anti-black dimensions of anti-resisting laws, that is, criminal proscriptions against physically resisting law enforcement, harden white social dominance and deepen black racial subordination. This Article contributes to the field by identifying and examining the relationship between black resistance to racial subordination and the development of anti-resisting laws. This examination reveals three anti-black dimensions of these laws. First, they dis-simulatively re-inscribe fraught antebellum racial relations of power. Second, they were broadened to criminalize resisting unlawful arrest as part of the punitive front-lash against the Great Migration, the Civil Rights Movement, and the black-led urban uprisings of the 1960s. Third, they require black people to surrender their bodies to modern racially subordinating policing.

This Article provides a race-informed conceptual framework interrogating the normative assumption that physical resistance to law enforcement and the capture of arrest violates a sacrosanct social contract and is thus rightfully punishable. Ultimately, this Article calls for a shift in the response to black resistance to the capture of arrest and racially subordinating policing — away from punitive criminalization and toward transformative instigation to eradicate the harms animating said resistance.

Keywords: critical race theory, criminal procedure, abolition, criminal, critical legal studies