Donald F. Tibbs and Tryon P. Woods

Part I, the "Ethics of Parasitic Pleasure," reaches back to slavery, the institution through which white desires were given expression and defined value in terms of bodily sovereignty: whites attract honor, respect, and power-- value--by virtue of not simply possessing their own bodies, but through their ability to accumulate black bodies as their pleasure-things. We use this socio-legal lens in order to relate the prosecutions in Jena to the formation of the modern Western world and its production of value. Conversely, blacks entered the modern Western world as devalued human beings. So, too, did the six young boys arrested and charged in the Jena case.

Part II uses the slave codes of the antebellum era to establish the fraudulent ethics surrounding the "rule of law" in the Jena case. The law manifests this fraud in a number of ways worth recounting here. The rule of law presupposes that its subjects have given their consent to being governed, which merely mystifies the reality of captivity, torture, mayhem, *239 and the requirement of total submission for blacks. At the same time, the law decriminalized the white violence that was essential in holding together the nascent bourgeois democracy. This legal regime also buttressed the moral authority claimed by the ruling class; for decades white violence was cloaked in morality. Yet after the point when such violence became a sign of immorality, the violence did not cease; rather, it became the basis for the fraudulent ethics of white civil society today. This "ethics of fraud," as we refer to it, helps us understand how Jena unfolded through a legal framing of black criminality versus white innocence--how every act by the black teens was a punishable legal offense, while the white teens violated the law and black bodily sovereignty, with impunity.

Part III uses the post--Emancipation era to reiterate the point that no transcendent moment altered the paradigmatic relation of the black body to the idiom of power that blacks lived under prior to 1865. Gratuitous and irrational violence continued to capture the black body during the era of lynching. Our review of this period contributes a crucial dimension to our understanding of Jena. Lynchings teach us that policing blackness provides indispensable social cohesion for white civil society; that decriminalized white violence is the mechanism by which this community is forged; and therefore that impunity by the police and the ability of whites to ignore this antiblack violence are the marks of a deeper white solidarity that goes beyond differences in region, class, creed, or political affiliation. Part IV concludes with a brief but critical discussion of why the Jena case is fundamental to understanding how white supremacy is so deeply engrained in U.S. culture, in that it not only continues to inform the intrinsic political and psychic structures of this society, but its de facto legality presents little room in which to construct an alternate reality.

The Jena Six case emerges from a legal regime with a particular history of perversion regarding the lives of African Americans. Dating back to the slave codes of the South and progressing through the Fugitive Slave Acts of 1793 and 1850 (which often exacted harsher punishment than plantation *240 justice itself) to several landmark legal decisions such as Plessy v. Ferguson (1896) and Pace v. Alabama (1883), the law has continuously guaranteed black suffering in terms of black people's status as negated subjects. In the well-known words of Chief Justice Roger B. Taney in the Dred Scott v. Sanford decision, the Negro was so far inferior that his reduction to slavery was not only "to his benefit" but also that he had "no rights that the white man was bound to respect."

This article proffers an analysis of the Jena Six grounded in this historical context, going beyond mere acknowledgment of the debts that our present-day criminal justice system owes to the institution of slavery to approach an assessment of the violence blacks regularly face in the law, an encounter almost so mundane it escapes representation. A wide range of scholars have well documented that the U.S. ruling class crafted the contemporary U.S. prison regime as a replacement for the system of chattel slavery. This legacy can be seen in our nation's jails and prisons. As significant scholarship suggests, the Jena Six assumes its place within slavery's modern legacy.

How can we move beyond the limits of analogy? The Jena Six is much more complex than a metaphor can convey: What does it mean to be, in the words of Frantz Fanon, "an object in the midst of other objects," to live in "the domain of non-existence?" Born and raised in the French Caribbean colony of Martinique and later educated as a psychiatrist in Lyon, Fanon became an authority on how white supremacy renders the humanity of the colonized subject invisible. When he served as the head clinician at a psychiatric hospital in French-occupied Algeria during the mid-1950s, Fanon came to the realization that the Western discourse on man and civilization--whether in philosophy or medicine--literally expunged the black from existence. For Fanon, therefore, what it means to be "an object in the midst of other objects," to not be seen as a human being but instead objectified as if he were a chair or a log, is a question that is unapproachable: it exceeds the limits of representation.

*241 What Fanon means by this formulation, and why his insight matters for our purposes here, is that proper recognition of the problem before us is always and already circumscribed by the language we have available to us with which to identify our injuries. Insofar as the law establishes how we name and remedy injustice, it sets out the language in which we must locate our selves. The problem of race, however, cannot be adequately understood through the language of law. In this way, analyzing the Jena case--and other mundane operations of white supremacy--necessitates deconstructing law itself as a racial project in which black existence has been systematically occluded. A major reason for the difficulty in getting close enough to the problem of racial injustice in the law to offer a just response to it is what we have referred to as the entanglements of raw life. The task before us, therefore, is to lay out the ways in which the age of raw life retains the depths of earlier eras: a contingent existence that reveals itself through the guise of legal life and the stark horror of premature death.

Our discussion is neither about the legal aspects of the Jena Six case, nor about the six young men whose lives have been irreparably damaged. The former has been well vetted in domestic and international legal discussions, and while a rich treatment of the latter has yet to be done, it remains beyond the scope of this article. Instead, we examine the socio-legal context that produces the events in Jena and analyze how those events represent a moment of truth in what we refer to as "racial ordinariness": defined as another instance in the historically invariant punishment of black people, a banal spectacle that gives us the occasion to put black experience at the center of our analysis of U.S. legal regimes.

Reviewing the history of the black experience before the law clearly demonstrates that the Jena Six case is anything but unprecedented. U.S. history features a consistent storyline regarding blacks and the law, largely undeviated from--one which historian Mary Frances Berry referred to as "black resistance [to] white law." Berry reminds us that "[w]hether its policy was action or inaction, the national government has used the *242 Constitution in such a way as to make law the instrument for maintaining a racist status quo." The Jena Six case joins this long history of constitutional spectacles--moments where the law is revealed not as the protector of minority rights, as liberal historiographers and philosophers would have us believe --as a manifestation of civil society's commitment to not only maintain white dominance in economic, political, social, and military matters, but to effectuate blackness as the most trod-upon station in society.

While the popular conception of Jena is one of racist excess--of racism corrupting the otherwise fair process of justice--to conceptualize it as such obscures the mundane reality of black punishment. In other words, recounting the history of crimes against constitutionality, as numerous race scholars and historians such as Berry and Derrick Bell have already done, produces the necessary conditions for arguing the banality of the Jena Six case. But it cannot provide the sufficient grounds for gaining traction on what white supremacy means to the U.S. legal regime. Whenever one attempts to speak about the rules of race and power, one is forced back into a discussion of spectacular events--high-profile legal battles such as the Jena Six, for instance. The problem is that the spectacular actually camouflages the routine, the normal operation of the law against blacks in all its everyday terror and contempt, its misbehavior and broken ethicality. In other words, what is at issue is not that Jena has become a high-profile historical event, but rather that the kind of legal and social punishment of blacks that took place in Jena typifies the everyday practice of criminal law and its endorsement by white civil society throughout the nation.

When it comes to everyday life, the secret of the law, hidden in plain sight, is that there is no recourse to the disruption of black life by the mundane violence of living in a white supremacist society. The annals of contemporary legalized violence against black bodies are indeed spectacular, and the readily available examples merely hint at the terror defining black existence before the law: from the police beatings of Rodney *243 King or Oletha Waugh, the torture of Abner Louima, the killing of Amadou Diallo, the violent deaths of Malice Green and Johnny Gammage, to the recent shooting of Sean Bell on his wedding day. From the analytic vantage point of raw life, the racial violence of legal doctrine is also alive and well. The volatility of numerous Reconstruction era cases, briefly mentioned earlier, entangles with contemporary cases such as Wilson v. State and Lewis v. Casey. The numerous black men exonerated by DNA evidence and freed from prison through the Innocence Project, the prosecutors and District Attorneys who steadfastly maintain these men's guilt despite the irrefutable scientific evidence, and the numerous anonymous men and women condemned prior to the recent era of technological advances in forensic criminology--these are the signs of raw life in the domain of nonexistence.

To focus on any one of these spectacles is to deploy, and thereby reaffirm, the logic of the law itself. Documenting the law's excesses, in an attempt to explain the paradigm of white supremacist violence, merely renders it nonparadigmatic, and reduces it to the fraudulent ethics on which the law bases its ongoing hegemony. What makes the spectacle "spectacular" is precisely that the essential logic of the law remains unshaken. Such discrete examples cannot represent the spectrum in which this paradigm manifests today--what might be called the "paradigm of policing" --from the explicit violence of police homicides to the more subtle violence of the Jena Six case and the faceless millions held captive by the prison industrial complex. This violence against the black body is structural and foundational to U.S. society--not contingent or excessive--and it is this banal but essential quality to racism that the spectacular examples render unrecognizable.

The objective of this article, therefore, is to take the Jena Six case and examine it not in terms of its excessiveness, but in terms of its ordinariness. Full interrogation and complete understanding requires examining how the law itself has evolved through the state's relationship to captive black *244 bodies. The law is not merely a mechanism for maintaining a racist status quo. On the contrary, the law is itself constituted through state violence against blacks, from slavery to our present-day prison regime. The point to be examined here is historical and socio-legal in the sense that such an inquiry requires situating our particular spectacle--the Jena Six--at the locus of power created through the conjoined forces of the modem state, law, and race. As Fanon called for, however, this kind of analysis necessarily takes us beyond the law, beyond the political economy of inequality, and into the symbolic economy that produces the meaning of racialized bodies in the first place. We suggest that it is at these final levels--the problem of existence, or as W. E. B. DuBois put it, "what it means to be a problem"--that the spectacle of Jena can be grasped finally, not in terms of an instance of excess, but rather as precisely another moment in the invidious ethos of legalized terror that characterizes black suffering in the age of raw life, and constitutes the vernacular for everything in this society.

. . .

IV. CONCLUSION: WHITES ON THE LOOSE

With regard to the Jena case, this combined ethic of parasitism, fraud, and white solidarity--fundamental to white supremacy and deeply engrained in U.S. culture--continues to inform the intrinsic political and psychological structures of this society. In Jena, the hanging of the nooses was widely dismissed by whites as a youthful prank, akin to putting toilet paper on a person's front yard or shaving cream on a car. Although the high school principal wanted to expel the three youth, the school's superintendent reduced their charges on the basis that their prank was nothing more than a tasteless joke. Their reward for such parasitic violence was simple: after three days suspension, they were back at school. Barbara Murphy, a white resident of Jena, expressed the viewpoint of much of the white community that saw no connection between the nooses and racial hatred, nor between racism and the criminal charges against the six black students:

We don't have a race problem. It's not black against white. It's crime. The nooses? I don't even know why they were there, what they were supposed to mean. There's pranks all the time, of one type or another, going on. And it just didn't seem to be racist to me.

Racial violence, of course, is rarely recognized as such by the persecuting society. In the contemporary period, the parasitic relation between white *265 and black, "with black folk the indispensable sacrificial lamb" vital for the sustenance of white civil society, is strictly impermissible knowledge. This denial on the part of whites is not merely psychological or cultural--it is structural. In the post-civil rights era of formal legal equality, the State's official policy of colorblindness would evaporate as so much hot air were it not for white people, en masse, disavowing the continued centrality of racism.

Black people in Jena, of course, read the racist violence inherent in the hanging nooses. Robert Bailey, one of the Jena Six, illuminates the parasitism represented by the nooses:
It was in the early morning. I seen them hanging. I'm thinking the KKK, you know, were hanging nooses. They want to hang somebody. Real nooses, the ones you see on TV are the kind of nooses they were, the ones they play in the movies and they were hanging all the people, you know, and the thing dropped, those were the kind of nooses they were. I know it was somebody white that hung the nooses in the tree. You know, I don't know another way to put it, but, you know, I was disappointed, because, you know, we do little pranks--you know, toilet paper, that's a prank, you know what I'm saying? Paper all over the square, all the pranks they used to do, that's pranks. Nooses hanging there-- nooses ain't no prank.

Caseptla Bailey, Robert's mother, specifically addressed how the violence of the message is connected to actual violence against black bodies:
It meant hatred, to the other race. It meant that "We're going to kill you, you're going to die." You know, it sent a message: "This is not the place for you to sit. This is not your damn tree. Do not sit here. You know, you ought to remain in your place, know your place and stay in your place. You're out of your boundaries." And the first thing now that the sheriff department or that the chief of police want to say that--as well as the superintendent--one had nothing to do with the other. Now, come on now!

*266 As Caseptla Bailey so clearly puts it, black bodily dispossession remains a reality today; raw life is still the mark of the age. This pilfering of black sovereignty is literally a source of white entertainment. The June 1998 lynching of James Byrd in Jasper, Texas, by three white men who dragged Byrd from the back of their pickup truck for miles until his head separated from his body, not only underscores in horrific fashion Bailey's assessment of the violence faced by blacks in Jena, but provided the occasion to see white people having fun. Within a week of Byrd's murder, there were reports of copycat crimes: in Louisiana, three white men taunted a black man with racial epithets while trying to drag him alongside their car; in Illinois, three white boys assaulted a black teenager in almost exactly the same way; in New York City three months later, where police officers and firefighters parodied Byrd's lynching by imitating it in a Labor Day parade float; and in Washington, D.C., while Byrd's killers were under trial, a radio announcer responded to a clip from a song by Lauryn Hill by commenting, "No wonder people drag them behind trucks." Jokes and mimicry surround incidents of racial violence in ways that confound representation. It also shows how the distance of time and space do little to hinder the pedagogy of racial violence from reproducing its lessons.

The Jena Six case itself occasioned its own period of mimicry. In November 2007, the New York Times reported that since the huge September twentieth rally in Jena, where tens of thousands protested racism in the criminal justice system, there have been as many as fifty to sixty "noose incidents." That same month, hundreds of people gathered in Charleston, West Virginia, to call for hate-crime charges in the case of Megan Williams, a young black woman who was beaten, tortured, and sexually assaulted for days in a remote trailer by six white people. Paul Vitello, writing in the New York Times, questioned whether these hate crimes were "part of some new homegrown vernacular of race hate."

It seems more likely, however, that incidents such as the Jena Six case (or the murder of James Byrd) give permission to others to express in a more *267 dramatic fashion what is already alive and well at the level of the banal and everyday. We occasion this permitted conduct not to a new form of race hate, as Vitello suggests, but to an extension of a racially ordinary past in legal memory. In other words, what matters is not the new social terrain upon which we confront the racial disposition of the black body today, but instead, the manner in which we have failed to establish a legal system that could remove black punishment from its racial safekeeping. Chester Himes once wrote that "yesterday will make you cry." We would add that tomorrow will bring tears as well, since yesterday continues to shape the psychological, social, legal, and political structures of our society. This is one of the many lessons available to us through the Jena Six.

. Associate Professor of Law, Drexel University College of Law; JD, University of Pittsburgh; PhD, Arizona State University; LLM University of Wisconsin Law School.