A historic bill is currently making its way through the Oregon state legislature. In response to a number of high-profile racially motivated 911 phone calls, the bill would empower victims of such calls to sue callers for up to $250. State representative Janelle Bynum, one of the bill’s co-sponsors, had her own experience with one of these phone calls. A woman called 911 to report that Bynum, who is a Black woman, looked “suspicious.” Bynum was canvassing in the neighborhood to build constituent support during her re-election bid.
Bynum described the bill as “creat[ing] a legal pathway to justice” for those on the receiving end of racially motivated 911 phone calls. However, justice may be hard to come by. Those seeking recourse must not only prove that the caller had racist intent, but that they made the call to discriminate against or defame the victim.
As opponents have pointed out: That’s a high hurdle. The type of evidence that speaks to discriminatory intent is easy to imagine, but difficult to come by. A documented history of making 911 phone calls to report the activities of Black Americans specifically or a history of racial hostility generally might do the trick. However, it is highly unlikely that this evidence exists for every caller (or even the majority of callers) acting with racial animus. Without this evidence, there can be no conviction and, correspondingly, no suit. This means that those who use law enforcement to antagonize Black communities will go unpunished.
And even if evidence of racially discriminatory intent did exist, the potential payoff from a successful civil suit is not enough to justify pursuing legal recourse in the eyes of a victim. The cost of going to trial can run into the tens of thousands, multiple times the $250 maximum that victims could receive as damages. Furthermore, that $250 maximum is not high enough of a cost to compel would-be callers to think twice about acting on their prejudices.
Between the high burden of proof and the modest financial consequences, those who are inclined to make these calls are unlikely to be deterred. Thus, the purpose of the law, to create “a legal pathway to justice,” is more than likely to go unfulfilled.
In short, this radical proposal is all bark and no bite.
If Oregon is serious about quelling racially motivated 911 calls, it should introduce a truly radical proposal, rather than tiptoeing around the issue. These calls, which cause undue stress to Black communities that are already disproportionately subject to police violence, should be punishable as criminal offenses. Oregon should rethink its bill. And other states should follow suit.
Some might disparage this proposal as too punitive. Excessive punitiveness can be found on streets throughout cities across America where homeless individuals are arrested and prosecuted every day for sleeping in public places, begging in public places, loitering, and sleeping in vehicles in violation of municipal codes. Punishing those who would channel their racism into state-sanctioned violence is not too punitive at all. It meets hatred and bigotry with a decisive repudiation from the criminal justice system.
Three of the concepts that structure our criminal justice system are retribution, incapacitation, and deterrence. Each of these concepts warrants categorizing racially motivated 911 calls as criminal offenses.
Retribution is, of course, punishment for committing a criminal offense. The principle undergirding the idea of retribution is that a society is strengthened when it punishes those who commit socially reprehensible behaviors. Racism is one of our society’s most prevalent ills. Those who would sic law enforcement upon innocent Black Americans are among its worst perpetrators. Making these inappropriate calls not only wastes the time and resources of law enforcement, but harnesses the power of law enforcement to enforce racism. In doing so, these calls, and the callers who make them, perpetuate fear, violence, and the fraught relationship that has historically existed between the police and the Black community.
Incapacitation is the idea that those who commit or attempt to commit criminal offenses should be punished such that they are prevented from making future attempts or completed offenses. It is likely that those who are inclined to make these kinds of calls have a history of doing so or of committing other racial hostilities. Those inclined to make these kinds of calls are not unlike George Zimmerman, Michael Dunn, and Michael Drejka. The only difference is that they would use the power of the criminal justice system to harass Black communities, rather than take matters directly into their own hands.
Victims seeking recourse from the criminal justice system for being subject to these calls would likely face the same difficulties as they would in dealing with the civil justice system. The state, which would be prosecuting the case on behalf of victims, would need to show that the caller had racially discriminatory intent, which, as has been argued, could be difficult to prove beyond a reasonable doubt.
However, the barriers to successfully prosecuting racially motivated 911 calls do not negate the argument for categorizing them as criminal offenses.
The deterrence argument is the strongest argument for such categorization. It generally holds that criminal punishment sends a clear message to those who would commit the same offense that they should rethink doing so.
Those inclined to make racially motivated 911 calls will rethink doing so knowing that these calls can be prosecuted at all (regardless of whether or not prosecution can be successful). They will have second thoughts about whether their irritation or frustration at the sight of Black Americans going about with their lives is strong enough to potentially expose themselves to a misdemeanor or felony conviction and the collateral consequences of having a criminal record. Arrests and prosecutions for making these calls will likely be widely publicized because of the unprecedented nature of doing so. As a result, the public will be put on notice that these crimes will be enforced seriously.
Racism is not a rational belief and racists are not known for their reasoning skills. But for many, the possibility of ruining their own lives may be intimidating enough to steer them away from actions that cause them to ruin the lives of others. The threat of criminalization may be enough to deter would-be callers from acting on their racism (at least in that particular way). This threat might save lives.
The purpose of our criminal law is to deliver justice to victims and, in doing so, repair the bonds of society, which have been damaged by the commission of a given crime. Over the past year and a half, these racially motivated 911 calls have captured the national consciousness. Police were called on two Black men waiting for a friend at a Philadelphia Starbucks. Police were called on a Black girl in California for selling bottles of water. Police were called on a Black boy mowing a lawn for his neighbor in Ohio. Just a few weeks ago, a woman decided to take matters into her own hands, pulling her gun on a Black couple simply trying to have a picnic at a campground in Mississippi. And those are just the stories that make national news. There are likely countless more. Victims of such racism are left with emotional and psychological scars from being subjected to the prospect of violence, arrest, and prosecution for simply living while Black. Racially motivated 911 calls weaken our society by summoning the criminal justice system to harm rather than help. In short, justice demands that criminal justice systems in states across the country crack down on racially motivated 911 calls.
Attempts to criminalize race should be dealt with by criminalizing the racism that motivated them.
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