Conversation with Orlando Patterson: “The Confounding Island: Jamaica and the Post-Colonial Predicament”

Black Memoirs In the Global Age of the Boston University Center for the Humanities


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Brookline Booksmith Video Event: NO REFUGE, by Serena Parekh, in conversation with Patricia Williams

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Out of Many, One: Collaborating is the Way to Accelerate COVID 19 Vaccine Development

By  John Loike,, Matthew Cobb, Patricia J. Williams, and Robert Pollack

Healthcare Business Today Team – October 20, 2020

The best way to recover from today’s global economic and health crises brought on by the Covid-19 pandemic is to create, widely distribute and administer an effective vaccine. There are about 200 vaccine trials either in progress or in development around the world and nine of which are in crucial phase three trials. The scientific success rate for vaccine development over the past 80 years is about i7%. This means that we will have about 14 successful vaccines for COVID. The US government supported-vaccine development is strong, having already invested vaccine grants in excess of $2 billion dollars into many companies and research institutions. This broad approach is to be welcomed, as the larger the number of potential vaccines, the more likely it is that we will hit upon at least one that works.  One major difference today is that the pipeline of new vaccine candidates is the involvement of large pharmaceutical companies in vaccine development. In contrast, from 1990 to 2012, vaccines entering clinical trials emerged mainly from small and medium-size companies, not from large companies.

The US government can speed up the vaccine development process by requiring better collaboration among all companies and institutions working to develop and to assess safety of their vaccines.  In normal times, patents and intellectual property rights are seen as essential in promoting drug development, whether by big pharma or by publicly-funded research institutions. This is not necessarily the case – Jonas Salk famously did not retain the rights to his polio vaccine, asking “Could you patent the sun?” Even today Imperial College London is developing its Covid-19 vaccine through a social enterprise that will waive royalties for low-income countries.

Nevertheless, obtaining regulatory approval for vaccines can take years. Flexibility by regulators and above all, collaborative research and the sharing of intellectual property on vaccine development will accelerate this process of assessing efficacy and safety.  Is there any way to further accelerate vaccine development?  Yes: sharing what we know with each other, freely and openly.

In order to produce sufficient amounts of an effective vaccine in time to save hundreds of thousands of innocent lives, it is now time to first encourage – and then to mandate – that all companies and research institutions receiving government grants temporarily ignore patents and intellectual property rights and to collaborate instead, through agreements brokered by the relevant national bodies.

   This is not a pipe dream.  Many governments across the globe have the power to temporarily override patents. The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) permits countries to declare a national emergency and then issue a compulsory license, including for expensive branded drugs. The 2001 Doha Declaration on the TRIPS Agreement and Public Health affirmed countries’ prerogative to take such actions, including for public health crisis, which enable people to access patented medicines at affordable prices.

In vaccine development, there are three milestones. The first is developing a vaccine that works in vitro, or in animal models. The second is determining how best to deliver the vaccine to people across the globe. The last is initiating the appropriate clinical trials to test efficacy and identify potential side effects. Collaborations can be effective in rapidly achieving all three milestones. For example, to accelerate milestone one, companies should share data on the risks and benefits of using RNA vs DNA vaccines over conventional vaccines; on types of vaccines;; and on the best methods to strengthen a vaccine. This last issue is particularly important because recent studies report a rapid loss of antibodies to COVID-19 in survivors of the disease. 

Achieving milestone 2 will require collaboration to determine the best ways to package attenuated vaccines at room temperature in the absence of glass vials, and to the best routes for vaccine delivery, from among the four current options: oral, IV, intramuscular, or subcutaneous.  Finally, for milestone 3, the various pharmaceutical and research institutions would be able to collaborate to recruit sufficient volunteers for phases 1-2 and 3 clinical trials, and would be free to share data outcomes. 

How would such collaboration work? Collaborations are an intrinsic activity in science. Scientists around the world, including researchers in the US, Europe, the UK and China, are collaborating at a higher rate than ever before to address COVID-19. Under the guidance of the WHO, companies and research institutions could provide internal research data documents to the expert reviewers of the WHO. In addition, every few weeks they would zoom together to discuss the details of their research progress and offer suggestions or recommendations how to move forward.

Since we are only focusing on COVID-19 vaccine development, this collaboration should not have a major effect on the patents and intellectual property rights of other drug development projects that they are developing. In fact, while vaccines can generate significant profits, they are usually limited to the pandemic times, whereas drugs like statins are used for decades to lower cholesterol. If done correctly, this singular act of altruistic collaboration would not significantly affect the bottom-line profits of most companies. This collaboration would help ensure that we don’t sacrifice safety or efficacy for approval. Rather its impact on the global economy, by allowing the reversing of social distancing and quarantines, would be dramatic, saving the world economy billions, if not trillions of dollars.

John Loike is a bioethicist and professor of biology at Touro College in New York; Matthew Cobb is a professor in the Division of Evolution & Genomic Sciences at University of Manchester in Manchester; Patricia J. Williams isUniversity Distinguished Professor of Law and Humanitiesat Northeastern University School of Law in Boston; Robert Pollack is a professor of biological sciences at Columbia University in New York

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Data Magic and Democracy: Data Privacy, Politics and Transmedia Storytelling– a webcast with Caroline Jones, Daniel Weitzner, Patricia Williams, and Ethan Zuckerman

October 19, 2020

Hosted by the Transmedia Storytelling Initiative, Massachusetts Institute of Technology, School of Architecture and Planning

http://web.mit.edu/webcast/architecture/f20/data-magic/

Just weeks before the US presidential election, we invite you to an online public conversation central to our embattled democracy. Join leading scholars who will address internet policy, infrastructure, and ethics as, together with MIT’s Transmedia Storytelling Initiative, we examine the role of documentary and fiction films in shaping how we think about our data.

Documentaries and fiction films are among the most powerful cultural tools we have for stimulating important public conversations around data, privacy, and democracy. Urgent concerns with justice intensify the question: who owns our data, what algorithms sift it, and who decides what decisions it drives?  This online event (postponed owing to the closure of MIT’s campus last Spring) is made even more timely by recent revelations of the continued harvesting of data and foreign scams on social media, attempting to sway the upcoming US elections and sow doubt in the democratic process. How do we understand the interplay between our data and these social media? The “magic” of data is often evoked in cinema by swirling bits that vent from bodies and machines (“data sweat”), flowing numerals, bodies made of code, or massive diagrams of how it all connects.  Are these visual tropes effective for helping the public understand the infrastructures of data gathering, our personal roles as data producers, how industries deploy our data, and the need for privacy controls? The Great Hack joins The Fifth EstateCitizen 4, For Everyone, and The Inventor as recent films posing questions about how information and technology circulate, how they attract financial backing, and how data becomes a commodified product in our economy, often fueled by venture capital and extravagant promises of political impact or public good. 

Caroline A. JonesMIT – moderator; Director, Transmedia Storytelling Initiative

Daniel J. Weitzner, MIT – Director, MIT Internet Policy Research Initiative

Patricia Williams – Director of Northeastern University’s Law, Technology and Ethics Initiatives

Ethan Zuckerman –Director, Institute for Digital Public Infrastructure, UMass Amherst

http://web.mit.edu/webcast/architecture/f20/data-magic/

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CLOSING REFLECTION • THE ENDLESS LOOPING OF PUBLIC HEALTH AND SCIENTIFIC RACISM

ASSESSING LEGAL RESPONSES TO COVID-19 • AUGUST 2020 • WWW.COVID19POLICYPLAYBOOK.ORG • 258

Electronic copy available at: https://ssrn.com/abstract=3681399

Patricia J. Williams, JD, Northeastern University School of Law

SUMMARY. There is a new intensity to the way that race, racism, and health risk have been jockeying for headlines. Given a global pandemic and a federal administration desperate to salvage its reelection prospects, questions of distributive justice—from vaccines to ventilators to triage—have become vexed by some truly terrible ideas. This essay is a call to avoid injecting terrible old ideas back into public policy practice in ways that threaten to instantiate whole new regimes of discrimination, segregation and “race science.”

Introduction

We were in first grade together, the woman who used to call me her Best Black Friend. I cured her of that years later, but still, after a lifetime of valiant trying on both our parts, she retains the power to startle. There we were, having a perfectly amiable chat about actor James Earl Jones’s lusciously resonant baritone when she said: “it must be because of the way black people’s larynxes are shaped. You can hear the difference in the how their vocal cords affect sound.” I was so taken aback by her sudden slippage into an imaginary plural that I could not speak. She saw that I was struggling. “It’s probably why you have such a beautiful voice,” she added gently, as though application of the aggregate singular might help.

There are many absurd assumptions about embodied black difference abroad in our land: “They” can’t swim because their bodies don’t float. “They” can jump higher thanks to an extra muscle in their legs. The imagined black body has a smaller brain, a bigger butt, a longer penis, saltier blood, wider feet, extra genes for aggression, thicker skin. Nor is this just history. Many dangerously unscientific beliefs about racial difference are baked into present day pharmaceutical titrations and point-based algorithmic calculations, altering diagnoses of everything from incidence of skin cancer, to diabetes, to likelihood of osteoporosis, to tolerance for pain.

It is thus that I greet with great suspicion the news that a federal committee advising the Centers for Disease Control and Prevention (CDC) is reported to be considering who should be at the head of the line for any vaccine developed for COVID-19; and that one idea being floated is whether those identified as black and Latinx should be prioritized as distinguishably COVID-19-vulnerable populations (Twohey, 2020).

There’s no question that people of color are dying at disproportionately unholy rates. As of mid-summer 2020, the age adjusted data analyzed by the American Public Media Research Lab, indicates that the widest disparities in American deaths afflict black, indigenous and Latinx populations. Black mortality rates are from 2.3 to 3.7 times greater than for whites. Indigenous rates are as much as 3.5 times higher and Latinx people two to three times higher (APM Research Lab, 2020). When broken down by county, the death rate for predominantly black counties is six times that of predominantly white counties. But all racial groups marked as minorities in America—including Asians, Latinos, Pacific Islanders–are more likely than whites to die from COVID-19 (APM Research Lab, 2020). And the true picture may actually be much worse: CDC weights its calculations in ways that omit geographies that have few to zero cases—which, coincidentally, just happen to be largely white areas. According to an article in the Journal of the American Medical Association, this weighted counting “understates COVID-19 mortality among Black, Latinx, and Asian individuals and overstates the burden among White individuals” (Cowger et al., 2020).

The problem with assigning vaccine-eligibility by race or ethnicity centers on the use of those political and social constructs as proxies for all the prejudices and vexed material conditions that render raced bodies as more susceptible to begin with. In effect, it turns “race” into a signifier of innate disease propensity and physical disability. Yet, one may wonder why minorities’ lower survival rates could not be more accurately described by referring to homelessness, dense housing, lack of health insurance, inadequate food supplies, or exposure to environmental toxins in the ghettoized geographies that have  become such petri dishes of contagion.

This is not to suggest that discrimination suffered by blacks and Latinx is simply about class. In a nation shadowed by eugenic intuitions about “useless eaters” whose lives are deemed “not worth living,” race is its own risk. American prejudices about color and race are rooted in powerful, long-term traditions of anti-miscegenation and untouchability: the propinquity of dark bodies—sometimes even so much as eye contact—incites anxiety and a fear of social contamination. Even to doctors, color can bean unacknowledged source of revulsion if they have grown up in all-white environments; it can operate affectively and aversively, like stigmatizing witchery. It’s understandable why head-of-the-line vaccinations might be attractive to some, if only as a devil’s bargain offering access to a resource perceived as otherwise inaccessible to blacks and Latinx.

There are surely no easy answers to managing scarce resources in dealing with a disease whose tragic boundlessness is still revealing itself.

Still, I worry about building public health architectures that use race or ethnicity as the equivalent of innate, biologized vulnerability—or, for that matter, biologized invulnerability. There is already global panic about who of us will live or die. One might anticipate vaccine eligibility-by-race turning into an unseemly competition over “blood.” How precisely would race even be determined: how you look? Who you grew up with? Would ethnicity be determined by your name? Your neighborhood? Would the whole thing end up being an economic boondoggle for sketchy DNA testing companies? It can be simply insidious to think of “race” as proxy: looking at someone’s color or social “place” and presuming all sorts of medical, criminological and genetic predispositions is unscientific.

By the same token, looking at a genetic variation and naming it after a more capacious, capricious and/or unstable category like “Hispanic” or “native American” is to write culture onto genes. (This is precisely how 23andMe and other ancestry-tracking or direct-to-consumer companies seem to be rewriting race as biological. They are thoughtlessly mapping all the social baggage of race onto the genome. It might not sell as well to those who are looking for romantic reconnection with lost “roots,” but it would be a lot safer and saner and more scientific to use an entirely new or different symbolic vocabulary to mark allelic or haplotype groupings.) To reinscribe the convoluted, shape-shifting social baggage of racial division onto our biology actually creates a new golem, a doppelganger of what we have historically thought of as race but a version that marks difference even more efficiently and insidiously than its older instantiations.

As far as we know, all humans are vulnerable to COVID-19. To assign race as causal in its spread is a category mistake. Even where certain diseases actually do cluster within particular populations, it is a mistake to describe such clusters as racial. Conditions like enzyme deficiencies, tolerance for altitude, the ability to metabolize certain proteins or construct nucleic acids, or the susceptibility to certain diseases are distributed throughout our species. Humans are susceptible to a whole range of diseases we often delude ourselves into thinking of as the property of “only” particular ethnicities or races, such as Tay-Sachs among descendants of Ashkenazi Jews; Kawasaki Disease as having a somewhat higher frequency among Japanese descendants; or sickle-cell anemia, often misleadingly called a “black” disease rather than an equatorial or malaria-related disease; or skin cancer which I once heard a television doctor describe as something black people “never” have to worry about. (I guess he never heard of Bob Marley.) All this shows that even high aggregations of frequency are no substitute for actual diagnoses: mere correlation is not the same as cause and effect. Yet, epidemiological calculations are too-frequently used as proxies for individual diagnoses, such as osteoporosis. For example, websites such as Medscape assign race in order calculate one’s risk of breaking a bone (Medscape, 2020).

Yet, while less melanin (or lighter skin) is correlated with higher risk of osteoporosis, racial identity is not biologically revealing of melanin (or diet or exercise, also indicators of risk): it is a political designation, whose parameters vary from nation to nation and culture to culture. Those who are assigned whiteness can run a gamut skin tones; and among those perceived as black there is a degree of variety as broad as humanity itself. A very light-skinned “black” American might be as prone to osteoporosis as a blonde woman from Norway. Moreover, even the very question of race is not one that is asked universally, but mainly in American-derived calculations. The website FRAX, an internationally used calculator formulated in the United Kingdom, has a calculator specifically for “USA use only,” which distinguishes risk for “US (Caucasian)” from “Black,” “Hispanic,” and “Asian” (FRAX, 2020).

To push the point just a little more, I am a woman of “a certain age” and doctors routinely use those two metrics—age and sex—as triggers for testing women over the age of 60 for osteopenia or osteoporosis. Thus, when I was given a routine bone scan recently, the results that came back to a computer on my doctor’s desk were supposed to figure out whether I might need medication, using my individual data and predictive algorithms. The doctor sat behind his computer screen for a very long time. Finally, his head emerged from around the rim of the screen. He cleared his throat, and mumbled that the machine couldn’t do the calculation, “probably because you’re black.” Annoyed but undaunted, I told him just to sabotage that machine by telling it I was white. Based on that simple switch of identity alone, the system promptly presented me with a slew of additional questions: like whether I’d ever broken a bone, if so at what age, whether I showed signs of rheumatoid arthritis, and most urgently, whether there was osteoporosis in my family, especially my mother.

The fact that the machine would not have asked me any of that if I had been categorized as black was machine-bias of a profound and profoundly interesting sort. Indeed, although the machine apparently had categorized my black-ness as “self-identified,” no one asked me about my heritage. Clearly some administrator or nurse had checked the box based on how purportedly and persistently “self-evident” or “obvious” race is thought to be within the American cultural context.

The infinite spectrum of melanin inheritance is thus reductively “seen” as an “either-or.” In addition, the authority of my well-trained doctor, a human expert, was superseded by the narrow closed-loop small-mindedness of a black box containing only the pathways programmed by a non-medical computer scientist who was apparently socialized to think about race as binary and blinding. The deference my doctor accorded to the machine—and the deference most of us accord algorithms—dislocates particularized human expertise. Black box medicine may be great at identifying and assessing broad patterns, but when it comes to the peculiarly complex intricacies of individual bodies in a nation of extraordinarily mixed and diasporic heritage, that deference to the machine can effectively end up treating probabilities as though they were certainties or absolutes. In or out; all or nothing. Thus, varying organic presentations of disease as well as adaptations to varying ecological conditions (like famine, altitude or inbreeding) are best thought of as precisely that: variations on a common human theme.

And yet, to this day, American medical schools teach that African Americans have greater muscle mass than whites. This is a fiction that dates to slavery, yet it informs how kidney disease is treated, for creatinine levels are used to measure kidney function, and greater muscularity can increase the release of creatinine in blood (Epstein et al., 2000). But rather than assessing individual patients’ actual muscle mass, most hospitals rely on an algorithm that automatically lowers black patients’ scores thus delaying treatment  in some instances by making all black people appear healthier than they may be (Roberts, 2020).

Similarly, a test developed and endorsed by the American Heart Association (AHA) weighs race in determining risk of heart failure: the algorithm automatically assigns three extra points to any “nonblack” patient; the higher the score, the greater the likelihood of being referred to a cardiology unit. Yet, there is no rationale for making race a lesser risk factor in heart disease and the AHA provides no reason (Vyas et al., 2020). Needless to say, black and Latinx patients with the same symptoms as their white counterparts end up being referred for specialized care much less often (Vyas et al., 2020).

Underserviced, too many black patients go unnoticed till they are at death’s door with “sudden” or “aggressive” versions of common diseases. With endless irony, that is when those neglected bodies may become exceptionalized embodiments of “genetic difference.” Medical historians like Harriet Washington, Dorothy Roberts, Lundy Braun, Troy Duster and Evelynn Hammonds have been complaining about such stereotypes and biases for decades, but perhaps it has taken the convergence of #BlackLivesMatters, a global health crisis, and a diverse new generation of outspoken medical personnel for this topic to have finally been taken seriously (Rosenbaum et al., 2020).

Rationing Care During the Pandemic

Again, I raise these stereotypes in order to ponder the medical consequence of such epistemic foolishness at a moment when COVID-19’s disparate toll on black and brown bodies has directed much attention to “underlying conditions.” Careful commentators will point out that underlying conditions are not the same as innate predisposition: there is no known human immunity to this coronavirus. And while age and illness may diminish our immune system’s response to any pathogen, that greater susceptibility is merely a probability indicative of neither any human predisposition nor any natural immunity. Our universal susceptibility to it is underscored precisely by the virus’ being “novel.” It bears repeating that underlying conditions like rates of stress, diabetes, asthma, and crowded living conditions and overrepresentation in risky jobs are factors directly accounting for greater intensity of affliction.

We know this—this is not a mystery.

Given this, attention to the fate of people of color is both overdue and double-edged: it highlights inequities but also risks reinforcing them as innate. For example, if the United States’ rates of infection are wildly off the charts compared to other nations, we do not generally blame it on the innate conditions of a peculiarly “American” biology; we know these numbers are the product of poor policy decisions. Just so, disproportionate deaths among communities of color must not be attributed to an imagined separateness of “African American” biology. Yet, that is precisely the risk. Amid a welter of misguided fantasies of “sub-species,” “bad blood,” and dissolute traits, we forget at our peril that the trauma and social factors disproportionately affecting people of color are also driving death rates among whites—if not to the same degree. Trap white people in crowded, poisoned, impoverished contexts and they die too.

The proposal to use race or ethnicity as a marker of disease vulnerability performs its persuasive labor by appealing to life-saving potential where confined to the context of vaccine prioritization. But it remains to be seen how race will intersect with the usages of vulnerability for purposes of triage in hospital settings. COVID-19 reduces us all to frail, wheezing, non-essential, bare bodies. When we arrive at the emergency room, we are delivered as mere bags of bones among so many “burdening” the health care system. Anonymously quarantined in isolated wards, not visibly marked as a uniquely beloved soul with dear family and networks of friends—is bad enough without having race deployed as an additional cipher for poor outcome. With a shortage of ICU beds, such a cipher will likely be algorithmically weighted as well, for algorithms are more efficient than the Horae, and doctors are really quite busy these days.

Recognizing the risks of bias in such emergency circumstances, the Department of Health and Human Services’ Office of Civil Rights issued a bulletin on March 28, 2020, restating a federal commitment to protecting “the equal dignity of every human life from ruthless utilitarianism.” Under both the Americans with Disabilities Act and the Affordable Care Act, people “should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.” The underlying concern is exemplified by the case of Michael Hickson, a black quadriplegic whose COVID-19 care was withdrawn by St. David’s South Austin Medical Center after a doctor told his wife: “…his quality of life—he doesn’t have much of one.” His wife was recorded asking pointedly: “Because he’s paralyzed with a brain injury, he doesn’t have quality of life?” The doctor answered in the affirmative (Shapiro, 2020).

The New England Journal of Medicine has run a number of articles about triage in the face of shortages of ventilators. Here is one such take:

            Triage proceeds in three steps: 1. application of exclusion criteria, such as irreversible shock;  2. assessment of mortality risk using the Sequential Organ Failure Assessment (SOFA) score, to determine priority for initiating ventilation; and 3. repeat assessments over time, such that patients  whose condition is not improving are removed from the ventilator to make it available for another patient. (Shapiro, 2020).

Number one covers the direst instances—crudely put, those who do not stand a chance. Number two, mortality risk, may encompass a lot of us who are older or who have disabilities or other pre-existing conditions. And since there is overlap between long-term stress, environmental poisoning, poverty, lack of medical insurance and such conditions, there is quite a perfect storm of collective mortality risk clustered by zip code and  histories of real estate segregation.

Number three, “repeat assessment” of whether to free life support for another patient is interpellated by availability of resources that will be in shorter and shorter supply as the numbers of sickand dying continue to climb. Ideally, such assessment is supposed to be done by committee, in conversation with family membersor surrogates, and done with consideration of a patient’s Do Not Resuscitate orders. But, in a pandemic or other emergency, decisions to withdraw care are frequently up to a single doctor or resident or perhaps a nurse. In other words, given the mounting numbers, it will probably be up to a highly stressed, overworked, frightened, sleep-deprived human being who has no relation to you but the abstractions of your temperature, oxygenation rate, age, and whatever else that singular individual medical professional finds to read onto, into, or out of one’s body.

Discrimination against those with loosely defined disabilities is already quite common; the University of Washington Medical Center, for example, has argued for “weighing the survival of young, otherwise-healthy patients more heavily than that of older, chronically debilitated patients” (Ne’eman, 2020). The reconfigured overlay of race as itself a debilitating, resource consuming morbidity-risk worsens the situation. Disability rights advocates have worked hard to push these concerns to the front burner, urging Congress to ban triage based on “anticipated or demonstrated resource-intensity needs, the relative survival probabilities of patients deemed likely to benefit from medical treatment, and assessments of pre- or post-treatment quality of life” (Solomon et al., 2020; see also Chapter 34). On July 22, the advocacy organization Disability Rights Texas filed a complaint with HHS against the North Central Texas Trauma Regional Advisory Council for its use of a rigid, point-based, algorithmic scoring system, which can automatically exclude from intensive care persons with a range of pre-existing conditions and disabilities without resort to individual assessment. Other states are beginning to reexamine their crisis rules in response to such concerns.

Political Consequences of Treating Race as Biological Destiny

Perceptions of disease, deviance, and disgust have always enabled time-worn and hypnotic constructions of embodied difference to be carried forward. When The New Yorker Magazine chose “The Black Plague” as a title for a really excellent piece about COVID-19 by the very insightful author Keeanga-Yahmahtta Taylor, there was a some pushback and rethinking of that as an unfortunate choice allowing some to think of the disease as not really affecting young white people partying on Florida beaches. More obviously and more powerfully, when Donald Trump speaks of “the China virus,” he not only gives the disease a race and a place; true to his outsized colonial imagination, he gives it distance. It’s “over there,” not here, well removed from the conceptual possibility of “our” susceptibility. If “we” are afflicted, it is not just the illness that debilitates us but anger that we have been invaded by “them.”  It is this form of displaced animus that one saw in the spikes of anti-Asian prejudice that arose in the wake of outbreaks of smallpox in San Francisco’s Chinatown in the 1800’s and that culminated in the Chinese Exclusion Act of 1882. Anti-Semitic nativism targeted Jews after bouts of typhus in 1892 (Wald, 2008). Mary Mallon, or “Typhoid Mary,” was an asymptomatic carrier of typhoid fever; her arrest in 1907 on public health charges galvanized much anti-Irish sentiment in New York City, figuring them as immigrants importing unsanitary and slovenly habits (Wald, 2008; Schweik, 2009). When the AIDS epidemic first started spreading in the 1980’s, some people told themselves it was a disease conveniently localized to the bodies of “gay men.” And when Zika virus was carried from equatorial regions by mosquitos riding the waves of climate change, New York City health officials sprayed insecticide by zip code (focusing on East Flatbush, Bedford-Stuyvesant, Crown Heights and Brownsville in Brooklyn, and in upper Manhattan, in the neighborhood once known as “Spanish Harlem”) (Frishberg, 2016), as though those pesky identity-politicking mosquitos could simply be red-lined (Denis, 2020).

Instead of coming together around our shared vulnerability, time and again we have created a set of golems to stand in for a pathogen, divisive demons that direct our fears of inherent virulence, murderous voraciousness and leech-like parasitism. Asians. “Aliens.” Anarchists. Reporters. Media. Social media. Dr. Fauci. The state of California. The city of Chicago. “That woman,” who is the governor of Michigan. People who wear masks. People who don’t wear masks. Peaceful demonstrators transformed into the face of “Corona Violence.” It is not by accident that President Trump’s targeted ads to white suburban housewives so neatly suture race, riot and disease as a way to channel the existential fear to which we are all so vulnerable right now: if you can keep “them” out of your neighborhood, everything is going to be all right.

Americans are not raised to believe in the entanglements of a common fate. The very notion of public health has been undermined by ingrained brands of individualism so radical that even contagious disease is officially regulated by the vocabulary of “choice,” “freedom” and “personal responsibility.” Many of us live in bubbles of belief that conceptual walls will protect us from things that are not easily walled: guns will bring peace, housing discrimination will bring bliss to soccer moms, segregated schools will serve up stable geniuses, and owning an island in the Caribbean will seal us off from child molesters, mafia dons and domestic abuse.

These comforting bromides set us up for naïve beliefs that disease invariably marks bodies in visible ways. “Surely we’ll be able to see it coming.” “You’re fine if don’t have a fever.” “You can’t spread it if you’re not coughing.” “You won’t give it to anyone if you’re asymptomatic.” Well before this pandemic, we Americans were blinded by the walls of our privatized bunkers, yet the sense of entitlement which supposes that disaster will strike “over there” but“ not in my backyard” pretty much guarantees an amplification of misdirected resources and relative disparities from which everyone will suffer eventually.

Conclusion

I have no answer for the deeply divisive fissures of race, ethnicity and American political identity that COVID-19 has exacerbated, although I truly wish I could think my way to a happy ending. So, I read and study and reread those statistics about how ethnic minorities, blacks, black women are dying at higher rates. I am not an epidemiological statistic—yet I have no doubt that my body will be read against that set of abstracted data points. I, and we all, will be read as the lowest common denominator of our risk profiles at this particular moment. Not only are we no longer a “we,” I am no longer an “I” in the time of coronavirus.

Meanwhile, COVID-19 makes snacks of us. The fact that there may be variations in death rates based on age or exposure or pre-existing immunological compromise should not obscure the epidemiological bottom line of its lethality. It kills infants, it kills teenagers, it kills centenarians. It kills rich and poor, black and white, overworked doctors and buff triathletes, police and prisoners, fathers and mothers, Democrats and Republicans. We can divide ourselves up into races and castes and neighborhoods and nations all we like, but to the virus—if not, alas, to us—we are one glorious, shimmering, and singular species.

Electronic copy available at: https://ssrn.com/abstract=3681399

ASSESSING LEGAL RESPONSES TO COVID-19 • AUGUST 2020 • WWW.COVID19POLICYPLAYBOOK.ORG • 262

CLOSING REFLECTION • THE ENDLESS LOOPING OF PUBLIC HEALTH AND SCIENTIFIC RACISM

About the Author

Patricia Williams, JD, a pioneer of both the law and literature and critical race theory movements in American legal theory, holds a joint appointment between Northeastern University’s School of Law and the Department of Philosophy and Religion in the College of Social Sciences and Humanities. She is also director of Law, Technology and Ethics Initiatives in the School of Law and the College of Social Sciences and Humanities, and an affiliate of the Center for Law, Innovation and Creativity

References

APM Research Lab (2020). The Color of Coronavirus: Covid-19 Deaths by Race and Ethnicity in the U.S. Retrieved July 22, 2020, from https://www.apmresearchlab.org/covid/deathsby-race

Cowger, T. L., Davis, B. A., Etkins, O. S., Makofane, K., Lawrence, J. A., Basset, M. T., &Krieger, N. (2020).

Comparison of Weighted and Unweighted Population data to Assess Inequities in Coronavirus Disease 2019 Deaths by Race/Ethnicity Reported by the US Centers for Disease Control and Prevention. Journal of the American Medical Association Network Open, 3(7): e2016933, 1-4.

Denis, N. A. (2020). New York City Sprays the Dominicans and Puerto Ricans for “Zika Prevention.” Retrieved August 10, 2020 from War Against All Puerto Ricans, https://waragainstallpuertoricans.com/2016/08/20/new-york-city-sprays-the-dominicans-and-puerto-ricans-for-zika-prevention

Epstein, A. M., Ayanian, J. Z., Keogh, J. H., Noonan, S. J., Armistead, N., Cleary, P. D., Weissman, J. S., David-Kasdan, J., Carlson, D., Fuller, J., Marsh, D., & Conti, R. M. (2000). Racial Disparities in Access to Renal Transplantation. New England Journal of Medicine, 343(21), 1537-1544.

Evans, M. K., Rosenbaum, L., Malina, D., Morrissey, S., & Rubin, E. J. (2020). Diagnosing and Treating Systemic Racism. New England Journal of Medicine, 383(3), 274-276.

FRAX (2020). Fracture Risk Assessment Tool. Retrieved August 10, 2020 from the University of Sheffield Centre for Metabolic Bone Diseases, https://www.sheffield.ac.uk/FRAX/tool.aspx?country=9

Frishberg, H. (2016). Eleven Brooklyn Zip Codes To Be Sprayed For Zika And West Nile Viruses Tonight. Bklyner. Retrieved August 10, 2020, from https://bklyner.com/elevenbrooklyn-zip-codes-sprayed-zika-west-nile-viruses-tonight-ditmas-park/

Goodman, A. (2020). Race Is Real, But It’s Not Genetic. Discover Magazine. Retrieved August 10, 2020, from https://www.discovermagazine.com/planet-earth/race-is-real-but-its-not-genetic

Medscape (2020). Drugs & Diseases: Calculators. Retrieved August 10, 2020, from https://reference.medscape.com/calculator/osteoporosis-risk-score

Ne’eman, A. (2020). ‘I Will Not Apologize for My Needs.’ New York Times. Retrieved August 10, 2020, from https://www.nytimes.com/2020/03/23/opinion/coronavirus-ventilators-triage-disability.html

Pfeiffer, S. (2020). U.S. Hospitals Prepare Guidelines for Who Gets Care Amid Coronavirus Surge. NPR: All Things Considered. Retrieved August 10, 2020, from https://www.npr.org/2020/03/21/819645036/u-s-hospitals-prepare-guidelines-for-who-gets-care-amid-coronavirus-surge

Roberts, D. The Problem with Race-Based Medicine. Retrieved August 10, 2020 from TED Talks, https://www.ted.com/talks/dorothy_roberts_the_problem_with_race_based_medicine/up-next?language=en

Schweik, S. M. (2009). The Ugly Laws: Disability in Public in The History of Disability. New York, NY: NYU Press.

Shapiro, J. (2020). One Man’s COVID-19 Death Raises the Worst Fears of Many People with Disabilities. Retrieved August 10, 2020 from NPR, https://www.npr.org/2020/07/31/896882268/one-mans-covid-19-death-raises-the-worst-fears-of-many-people-with-disabilities

Solomon, M. Z., Wynia, M. K., & Gostin, L. O. (2020). Covid-19 Triage—Optimizing Health Outcomes and Disability Rights. New England Journal of Medicine, 383(5), e27(1)-e27(3).

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Vyas, D. A., Eisenstein, L. G., & Jones, D. S. (2020). Hidden in Plain Sight—Reconsidering the Use of Race Correction in Clinical Algorithms. New England Journal of Medicine. Retrieved August 10, 2020, from DOI: 10.1056/NEJMms2004740

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Electronic copy available at: https://ssrn.com/abstract=3681399

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The Color of Contagion

The pandemic has intensified racial disparities. We have to address them without reinforcing them.

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As of the first week of August, there have been at least 160,000 deaths in the United States from Covid-19. There is data indicating race and ethnicity for approximately 90 percent of these deaths; in age-adjusted numbers analyzed by the American Public Media Research Lab, the widest disparities afflicted Black, Indigenous, Pacific Islander, and Latinx populations. Black mortality rates range from more than twice to almost four times as high as for white people. Among Indigenous people, the rates are as much as three and a half times as high and are two times as high for Latinx people. The death rate for predominantly Black counties is six times that of predominantly white ones.

It is telling that all racial groups marked as minorities in the United States, including Asians and Pacific Islanders, are more likely than whites to die from Covid. And the true picture may be much worse. The Centers for Disease Control and Prevention weights its calculations in ways that omit areas that have few to zero deaths—which, coincidentally, happen to be largely white. According to an article in the Journal of the American Medical Association, this weighted counting “understates COVID-19 mortality among Black, Latinx, and Asian individuals and overstates the burden among White individuals.”

On the basis of these statistics, a federal committee advising the CDC is reportedly considering who should be put at the head of the line upon the release of a vaccine. There is relatively little disagreement that “vital medical and national security officials” (as they were described in a recent New York Times article) would be first, as well as others considered essential workers—however unclearly that’s defined. (Teachers? Poll workers? Grocery store clerks? Housekeepers? Mortuary staffers? Bus drivers?)

More contentious is whether especially vulnerable populations should be fast-tracked—and in particular whether those identified as Black or Latinx should be prioritized. The controversy centers on the use of race and ethnicity as proxies for all the prejudices and vexed social conditions that render raced bodies as more susceptible to begin with. One may wonder, in other words, why minorities’ disproportionately lower survival rates couldn’t be more accurately attributed to homelessness or dense housing or lack of health insurance or inadequate food supplies or environmental toxins or the ratio of acute care facilities to numbers of residents in the ghettoized locations that have become such petri dishes of contagion.

This is not to suggest that the discrimination suffered by Black and Latinx people is simply about class. In a nation shadowed by eugenic intuitions, race is its own risk. American prejudices about color and race are rooted in powerful long-term traditions of anti-miscegenation and untouchability. The propinquity of dark bodies—sometimes merely eye contact—incites anxiety and a fear of social contamination that operates a bit like the bestowing of “cooties” among children. Even to doctors, color can be an unacknowledged source of revulsion if they have grown up in all-white environments; it can operate affectively and aversively, like stigmatizing witchery. One can understand why racially prioritized vaccinations may be attractive to some as an attempted reversal of that acculturated sorcery and its death-enhancing consequence.

There are surely no easy answers to managing scarce resources when dealing with a disease whose tragic boundlessness is still revealing itself. Regardless, I am convinced it will not end well to build public health architectures that use race or ethnicity to signify innate vulnerability—or, for that matter, invulnerability. There is already global panic about which of us will live or die. One might anticipate vaccine eligibility by race turning into an unseemly competition over blood. How, precisely, would race or ethnicity even be determined? By how you look? Who you grew up with? Your name? Your neighborhood? Would the whole thing end up being an economic boondoggle for sketchy DNA testing companies?

There are so many absurd assumptions about embodied racial difference abroad in our land. “They” can’t swim because their bodies don’t float. “They” can jump higher, thanks to an extra muscle in their legs. The imagined Black body has a smaller brain, a bigger butt, a longer penis, saltier blood, wider feet, thicker skin, extra genes for aggression. Nor is this just ancient history. To this day, the spirometer, a machine to assess breathing function in asthma treatment, uses different scorings for black and white patients, based on a more than 200-year-old assumption that slaves had a biologically unique lung volume.

Even now, American medical students are taught that Black people have greater muscle mass than whites. This is a fiction that dates to the days of slavery, yet it informs how kidney disease is treated today, for creatinine levels are used to measure kidney function, and greater muscularity can increase the release of creatinine in blood. But rather than assess individual patients’ muscle mass, most hospitals rely on an algorithm that automatically lowers Black patients’ scores below the level measured—thus delaying treatment in some instances by making all Black people appear healthier than they might be.

A test developed and endorsed by the American Heart Association weighs race in determining the risk of heart failure. The algorithm automatically assigns three extra points to any “nonblack” patient; the higher the score, the greater the likelihood of being referred to a cardiology unit. Yet there is no rationale for making race a lesser risk factor for heart disease in some people, and the AHA provides none. Needless to say, Black and Latinx patients with the same symptoms as their white counterparts end up being referred for specialized care much less often.

Many dangerously unscientific beliefs about racial difference are baked into present-day pharmaceutical titrations and point-based algorithmic calculations, altering the diagnosis of everything from the incidence of skin cancer to diabetes to the likelihood of developing osteoporosis to tolerance for pain. Underserviced, too many Black patients go unnoticed till they’re at death’s door with “sudden” or “aggressive” versions of common diseases. With endless irony, that is when those neglected bodies may become the exception that proves the rule of “genetic difference.” Medical historians like Harriet Washington, Dorothy Roberts, Lundy Braun, Troy Duster, and Evelynn Hammonds have been complaining about such stereotypes and biases for decades, but perhaps it has taken the convergence of Black Lives Matter, a global health crisis, and a diverse new generation of outspoken medical professionals for this topic to finally be taken seriously.

I raise these stereotypes in order to consider the medical consequences of such epistemic foolishness, particularly at a moment when Covid-19’s disparate toll on Black and brown bodies has directed attention to underlying conditions. Careful observers will point out that underlying conditions are not the same as innate predisposition: There is no known human immunity to this coronavirus. Our universal susceptibility to it is underscored by the virus being labeled “novel.” But it bears repeating that underlying conditions like stress, age, diabetes, asthma, crowded living conditions, and having a risky job are factors directly accounting for greater rates of infection. This much is not a mystery.

Attention to the fate of people of color, in particular, is both overdue and double-edged: It highlights inequities but also risks reinforcing them as somehow innate. If the US rates of infection are wildly off the charts compared with other nations’, we do not generally blame it on the innate or underlying conditions of a peculiarly American biology; we know these numbers are the product of poor policy decisions. Just so, disproportionate deaths in communities of color must not be attributed to an imagined separateness of Black or Latinx biology. Yet that is the risk when, as just one example, half of white American medical students believe in medical myths about race.

Amid a welter of misguided fantasies, we forget at our peril that the traumas and social factors disproportionately affecting people of color are also driving death rates among whites, even if not to the same degree. Trap white people in crowded, poisoned contexts devoid of public assistance, and they die too.

The proposal to use race or ethnicity as a marker of vulnerability to Covid-19 does one kind of work in the context of vaccine prioritization. But how it might intersect with the procedures that govern triage in hospital settings is not yet known. Recognizing the risks of bias in such emergency circumstances, the Department of Health and Human Services’ Office for Civil Rights issued a bulletin on March 28 restating a federal commitment to protecting “the equal dignity of every human life from ruthless utilitarianism.” Under the Americans With Disabilities Act and the Affordable Care Act, people “should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.”

The vulnerable and the dead: Protester Alice Gaskins joins a memorial procession for essential workers who have suffered or died from Covid-19. (Misha Friedman / Getty Images)

 

Discrimination against those with loosely defined disabilities is quite common. The University of Washington Medical Center, for example, has argued for “weighing the survival of young otherwise healthy patients more heavily than that of older, chronically debilitated patients.” The reconfigured overlay of race as a debilitating, resource-consuming morbidity risk worsens the situation. Disability rights advocates have been working hard to push these concerns to the front burner, urging Congress to ban triage based on “anticipated or demonstrated resource-intensity needs, the relative survival probabilities of patients deemed likely to benefit from medical treatment, and assessments of pre- or post-treatment quality of life.” On July 22, the advocacy organization Disability Rights Texas filed a complaint with the Department of Health and Human Services against the North Central Texas Trauma Regional Advisory Council for its use of a rigid, point-based, algorithmic scoring system that can automatically exclude from intensive care people with a range of preexisting conditions and disabilities without resort to an individual assessment. Other states have begun to reexamine their crisis rules in response to such concerns.

Perceptions of disease and deviance and feelings of disgust have always enabled the timeworn constructions of embodied difference to be carried forward. When Donald Trump speaks of “the China virus,” he not only gives the disease a race and a place; true to his outsize colonial imagination, he gives it distance. It’s over there, not here, well removed from the conceptual possibility of our susceptibility. If we are afflicted, it is not just the illness that debilitates us but our anger that we have been invaded by “them.”

It is this form of displaced animus that emerged in spikes of anti-Asian prejudice that arose in the wake of outbreaks of smallpox in San Francisco. The epidemic was blamed on the residents and culture of Chinatown in the 1800s, a pattern that culminated in the Chinese Exclusion Act of 1882. Anti-Semitic nativism targeted Jews after bouts of typhus in 1892. Mary Mallon, better known as Typhoid Mary, was an asymptomatic carrier of typhoid fever; her arrest in 1907 on public health charges galvanized anti-Irish sentiment in New York City, depicting them as immigrants importing unsanitary and slovenly habits. When the AIDS epidemic started in the 1980s in the United States, some people told themselves it was a disease conveniently localized to the bodies of gay men. And when the Zika virus was carried from equatorial regions by mosquitoes riding the waves of climate change, New York City health officials began spraying insecticides by zip code (focusing on neighborhoods like East Flatbush, Bedford-Stuyvesant, Crown Heights, and Brownsville in Brooklyn, as well as the neighborhood in upper Manhattan once known as Spanish Harlem), as though those pesky, identity-politicking insects could simply be redlined.

Instead of coming together around our shared vulnerability, time and again we have created a set of golems to stand in for the virus, divisive demons that direct our fears of inherent virulence, murderous voraciousness, and leechlike parasitism. Asians. Aliens. Anarchists. Reporters. Media. Social media. Dr. Anthony Fauci. California. Chicago. “That woman” who is the governor of Michigan. People who wear masks. People who don’t wear masks. It is not by accident that Trump’s targeted rhetoric to white suburban housewives so neatly suture race, riot, and disease as a way to channel the existential fear to which we are all so vulnerable right now: If you can keep “them” out of your neighborhood, everything is going to be all right.

Americans are not raised to believe in the entanglements of a common fate. The very notion of public health has been undermined by ingrained brands of individualism so radical that even contagious disease is officially regulated by the vocabulary of “choice,” “freedom,” and “personal responsibility.” Many of us live in bubbles of belief that conceptual walls will protect us from things that are not easily walled off: Guns will bring peace, housing discrimination will bring bliss to soccer moms, segregated schools will serve up stable geniuses, and owning an island in the Caribbean will seal us off from child molesters, Mafia dons, and domestic abuse.

Scientific racism: An illustration from an 1830 book based on a lecture on facial angles by the Dutch anatomist Petrus Camper. In the 18th century, medical science was distorted for the purposes of racial classification.

 

These comforting bromides are akin to naive beliefs that disease invariably marks people’s bodies in visible ways. “Surely we’ll be able to see it coming.” “You’re fine if don’t have a fever.” “You can’t spread it if you’re not coughing.” “You won’t give it to anyone if you’re asymptomatic.” Well before this pandemic hit, we Americans were blinded by the walls of our private bunkers. Yet the sense of entitlement that supposes disaster will strike over there but not in my backyard guarantees an amplification of misdirected resources and relative disparities from which everyone will suffer eventually.

I don’t have an answer for any of this, although I truly wish I could think my way to a happy ending. So I read and study and reread those statistics about how ethnic minorities, Black people, Black women are dying at higher rates. I am not an epidemiological statistic, yet I have no doubt that my body will be read against that set of abstracted data points. I—and we all—will be read as the lowest common denominator of our risk profiles at this particular moment. Not only are we no longer a “we,” but I am also no longer an “I” in the time of the coronavirus.

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Donald Trump Is the ‘Undertaker’ of American Politics

A master of political misdirection, the president hides behind the idea that he’s only doing schtick. But the joke is on us.

 

What’s not to love about a good old-fashioned three-ring circus? The flash and bang of the human cannon, the dancing bears, the ponies prancing in lockstep, the flying trapeze, the tiger tamed, the clown brought down in a pratfall. But circus magic depends upon the art of misdirection. The best acts amaze us not only because they are skilled gymnasts or animal whisperers but also because they have mastered the ability to focus attention—on what they are doing as well as away from it. Perfected distraction is the essence of magic: the sleight of hand, the visual feint, the shell game, the disappearing act, the great escape.

President Donald Trump is a master of political misdirection. For those who have never seen his performance as comic impresariofor World Wrestling Entertainment (WWE), back when he was engaged in a Battle of the Billionaires with Vince McMahon, now might be the time to do some catch-up viewing. A natural ringmaster, our president was fond of entering an arena flanked and followed by fawning courtiers. The evening he was nominated at the 2016 Republican National Convention as the party’s presidential candidate, he made just such a magnificent entrance from behind a smoky scrim, illuminated by flashing lights amid a great wash of loud music. This over-the-top performativity is why many people who voted for him still insist that Trump isn’t a racist or a misogynist, that he doesn’t really mean what he says. In their estimation, he’s only doing shtick; he’s merely a great rodeo clown who seduces with humor and hyperbole. Even as recently as April, he was forgiven by many in his base for the “satire” of prescribing bleach and blasts of ultraviolet light, like a demented sword swallower’s bid to cure Covid-19.

For nearly four years, Trump has dissolved the foundations of our government in the acid of such nonsense, with even the most bizarre, ignorant, heinous, nativist, incoherent, awful behavior greeted as miraculous transmutation. From caging children to classifying journalists as “enemies of the people,” he has eroded the Constitution with nary a check and has been repeatedly forgiven because supposedly he’s a businessman or he’s a performer or he’s “real.” It’s all OK as long as he’s not really a politician.

It’s all funny—hilarious, even—until it really, really isn’t.

When, on June 1, Trump strode across Lafayette Square from the White House to a symbolic house of God, the fictive circus suddenly got real. It was like one of those terrible Agatha Christie moments when the magician puts a woman—it’s always a woman—into a box and pretends to saw her in half. Except the trick goes wrong! We are frozen for a moment. That can’t be blood! We don’t believe our eyes.

There was certainly lots of drama leading up to the moment. There was the president’s weeklong snowballing fury, which climaxed with that photo of him holding the Bible aloft like a cat he had just strangled. There was the call with governors, during which he used some form of the word “dominate” 14 times. There was the threat, delivered from the Rose Garden, of sending in the military to discipline domestic demonstrators. There was an order to designate antifa as a terrorist organization—in the absence of any evidence it either is an actual organization or is engaged in terrorist activity. Finally, there was the summoning of a retinue of courtiers to cross the Rubicon of Lafayette Square, including the US attorney general, the secretary of defense, and the chair of the Joint Chiefs of Staff. Together they formed a brave flèche, picking their way through the litter of tear gas canisters where peaceful protesters had been violently removed only moments before. A White House spokeswoman took the liberty of comparing the scene to Winston Churchill inspecting the rubble of London during World War II, but to me, Trump’s angry march across the plaza amid a hellscape of pepper grenades and loud cries looked more like the stormy entrances made by the darkly wrathful WWE character and crowd-pleasing favorite the Undertaker.

Like any good gimmick, this misbegotten tableau came with an evocative caption: Operation Themis. I found a certain deceptive irony in that sheep’s clothing of a name, so tailor-made for a wolf. Themis is said to have created the Delphic Oracle. Themis was the Greek goddess of divine order, customary norms, and the general awareness of right from wrong. Her will was revealed through omen and revelation, not man-made law. When Themis’s commands were neglected or ignored, Nemesis was said to take over—Nemesis being the goddess of divine retribution, the avenger of crime. Carrying a scourge, a whip, a sword, and a measuring rod, she was called implacable. To me, therefore, Operation Nemesis seemed a much more fitting label for the events of June 1.

But whether in the name of Themis or Nemesis, the staging suggested mythic glory, this evocation of Moses parting the Red Sea, this smackdown team of muscled if maskless superheroes, with Princess Ivanka bringing up the rear like an ice swan, bearing a Bible in her boxy snow-white handbag. And just as with the Undertaker’s entry into the ring, Donald Trump’s procession was marked by Sturm und Drang and curtains of smoke through which the victorious lord materialized and “dominated.”

The fact that the smoke was really tear gas or that there were flailing batons, sharp-hoofed horses, and gladiators in real battle gear with real guns pointed at real citizens or that this was the real president and the real secretary of defense commanding the real and immense power of the US military against a lawful and peaceful assembly or that this was a display of real authoritarianism in unconstitutional service to such a petty, tin-pot end… well, it all hardly seemed to matter. What lingered in the mind was that this was a brilliantly theatrical, visually plotted performance with so many mixed-up cinematic and comic book references, it was hard to keep track.

But the magic of misdirection does not only make us wonder how that hefty white rabbit materialized out of thin air. Performed skillfully enough, you just might end up believing that the magician himself is a renderer of miracles and that the word “abracadabra” can override the very laws of physics. Trump’s march, cutting its way through crowds like a bulldozer, was the kind of performance that enchants its viewers into new realities. It visually telegraphed a powerful alternative universe and enacted a heretofore unimaginable blueprint of how state force might “dominate” a public space. It was behavior whose performativity operates far beyond itself. Mere oaths of office faded in its wake. The Posse Comitatus Act evaporated like a ghost. You, the people, used to have a working Constitution, but—oops!—you blinked, and it disappeared.

Back to the bunker: Trump returns from his visit to St. John’s Church on June 1. (Patrick Semansky / AP Photo)

 

Idon’t wish to spend much time deconstructing what was going on in the president’s mind. Better to examine the downstream effects of his pantomime as it was echoed and reenacted in the pushing aside of other peaceful protesters in other places in the days that followed. For all the genuinely moving moments of police kneeling and thoughtful engagement in the complexity of dissent, there seemed to be a clear national uptick after June 1 in police throwing demonstrators to the ground, beating marchers, attacking journalists and photographers, spraying tear gas in onlookers’ faces, and threatening protesters with moving vehicles.

Consider one particularly visible and vexed case: On June 4, 75-year-old Martin Gugino, a Catholic peace activist, was shoved by members of the Buffalo Police Department’s Emergency Response Team. Gugino stumbled backward and fell, hard, onto the pavement, fracturing his skull. He lay there with blood flowing profusely in a pool around his head. Later, after help finally came, he was hospitalized (and remained so two weeks later, in serious condition). But remarkably, help was not immediately forthcoming. A spectator with a smartphone captured the episode; the video showed an entire squadron of police, including the officers who shoved him, walking past Gugino’s supine form. Not one of them came to his aid. Instead they moved on like a school of fish or a pack of wild horses gliding around a big stump in the ground. It is a shocking video. The push itself was both brutal and careless, the response even more so.

Yet there was a notable moment in the video when one officer hesitated, seemed to waver. But just then, another officer put his hand on his shoulder and signaled him to keep moving. That brief turn toward the injured man was the tiniest shimmer of movement, lost as quickly as it came, as the herd moved on. I remark on that small hesitation because it occurred at the instant in this narrative when Themis might reasonably have been invoked. This was the moment of crisis when the internalized voices of our leaders, mentors, teachers, and friends should insert themselves for a nudge toward goodness. It is precisely the instant when one might wish for better angels rather than avenging scolds to intervene. This is the situation in which lessons in the basic skills of deescalation might assert their value as those inner advisory voices, that second nature. That’s enough. Take your knee off his neck. Don’t step over an unconscious body in your role as a guardian of public safety.

Indeed, in the video, the officers seemed transfixed by the groupthink of staying together, an orderliness that overrode kindness or common sense. It looked as though they were pursuing a mission unrelated to the fate of members of the public and had forgotten what they were there to do. Too busy to look down or look back, they couldn’t stop to heal or to recognize actual vulnerable civilian circumstance as part of their charge.

This brusque triage of concern is the downstream application of a state of mind that treats public ground as a “battle space,” as Secretary of Defense Mark Esper urged the governors during the group phone call of June 1. That logic of war was made even more apparent in short order: After the two officers who shoved Gugino were suspended and charged with second-degree assault, the entire Emergency Response Team—some 57 officers—resigned “in disgust” to protest the “mistreatment” of their brethren. As John Evans, the president of the local Police Benevolent Association, told The Buffalo News, “Our position is these officers were simply following orders from Deputy Police Commissioner Joseph Gramaglia to clear the square…. It doesn’t specify clear the square of men 50 and under, or 14 to 40. They were simply doing their job. I don’t know how much contact was made. He did slip in my estimation. He fell backwards.”

It is easy to pick up on the casual cruelty of those individuals who are just “following orders.” What is subtler and more complex is the corollary, expressed by Roger Berkowitz in a New York Times reflection on Hannah Arendt’s portrayal of Adolf Eichmann. Berkowitz wrote that the harder cases are those when people act “not as a robotic bureaucrat, but as part of a movement.” They “commit themselves absolutely to the fictional truth of the movement…. It is this thoughtless commitment that permits idealists to imagine themselves as heroes and makes them willing to employ technological implements of violence in the name of saving the world.”

Out of darkness: Trump’s entrance at the 2016 Republican National Convention was a stage-managed spectacle with smoke, flashing lights, and throbbing music.

 

As though to complete the circle and reinforce this ethic of good-soldierly dominance, Trump lost no time endorsing the Buffalo officers’ mass resignation, tweeting a completely unsubstantiated theory that Gugino “could be an ANTIFA provocateur.” (This is not an accusation to be taken lightly; in declaring those associated with antifa as terrorists, Trump potentially subjects them not only to oversight by police but also to much-harder-to-trace surveillance and interference by the FBI, CIA, and other spy agencies.) The president’s tweet concluded, “I watched, he fell harder than was pushed. Was aiming scanner. Could be a set up?” Although the FBI and the Department of Justice have, to date, announced no arrests of protesters linked to antifa ideology or groups, Attorney General William Barr suggested on Fox News that the lack of cases “does not mean they haven’t been involved in the violence.” The eloquently compressed response from Gugino’s attorney noted that the injured man “has been a longtime peaceful protester, human rights advocate and overall fan of the US Constitution.” Even Republican Senator Susan Collins stated, “I think it would be best if the president did not comment on issues that are before the courts.”

It is true that the two members of the Emergency Response Team charged with Gugino’s assault will come before the courts—eventually. Meanwhile, we must wonder what will happen to our collective consciousness by then. Second-degree murder charges have been filed against Derek Chauvin for the killing of George Floyd—but what filters might settle over our perceptions to make that presently inexcusable death seem reasonable through the same lens that exonerated the officer who strangled Eric Garner?

We must treat this sleight of hand with the seriousness it deserves. It may be that this moment sufficiently reveals to all Americans the disparities that African Americans and other people of color have been experiencing for generations. But we have been here before, if not to the same degree, yet over and over, what seems to be seen becomes unseen, our attention redirected. Even when the Trumpian circus earns scorn and furious backlash, his basest theatrical stylings nevertheless become viral moral templates to be reenacted elsewhere, familiarized as normative baselines are reset. Trump explicitly endorses an ethic that urges officers not to be “too nice” when making an arrest. He encourages an environment in which just stopping to acknowledge that you’ve mowed someone down is seen as weakness and restraint in governance is acting like a fool. The president praises extraordinary shows of force, seemingly driven by no higher morality than the pure vanity of wanting to appear invincible, the question of proportion a superfluity.

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Late Night Live, Australian Broadcasting

Protests and Presidents with Phillip Adams, June 3, 2020

Guest: Patricia Williamshttps://www.abc.net.au/radionational/programs/latenightlive/protests-and-presidents/12322268

 

 

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Plus ca change (or, repetition upon repetition upon repetition…)

 

Patricia J. Williams, “Anatomy of Short Lives: A Meditation on Repetitions of Regret,” Yale University, April 21, 2015

 

Professor Patricia Williams delivered the Henry L. Gates Jr. Lecture, “Anatomy of Short Lives: A Meditation on Repetitions of Regret,” on April 21, 2015, at the Whitney Humanities Center, Yale University. The Gates Lecture, established in 2012 and administered by the Department of African American Studies at Yale, is endowed in the spirit of excellence that Professor Gates (Yale ’73) brought to the Yale community, particularly in African American Studies, during his years of undergraduate study and while on the faculty.

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Cry, The Beloved Country: George Floyd and America’s Continuing Racial Tragedy

Law and Society Association Annual Meeting, Plenary Panel, May 31, 2020

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