Outlaw or Criminal?

The Pursuit of D.B. Cooper, a 1981 film version starring Robert Duvall

The Pursuit of D.B. Cooper, a 1981 film version starring Robert Duvall

Last week the FBI announced that it was ending its forty-five-year manhunt for D.B. Cooper. In case you are unfamiliar with the case, Cooper (real name unknown) famously hijacked a passenger plane from Oregon to Seattle in 1971 by claiming he had a bomb on board, freeing thirty-six passengers in exchange for $200,000 in cash (equivalent to about $1.2 million today), and taking off again with the pilot and a small crew. What made Cooper a legend in our popular imagination, however, is that Cooper subsequently managed to parachute out of the plane with the ransom money—and was never seen again. Before formally ending the search last week, the FBI interviewed hundreds of people, amassing a file that reportedly measures more than forty feet long (much of it now on-line) including information on more than 1,000 suspects.

Viewed dispassionately, the case against Cooper is straightforward and obvious: Cooper threatened violence, endangered the lives of many people by forcing an emergency landing, and stole a lot of money. These are serious crimes. Yet, he is viewed by many as more of an inspirational outlaw who pulled off an amazing heist than a true villain. His story has inspired movies, books, songs, a pretty funny Far-Side cartoon, an annual festival with a look-alike contest, and Mad Men conspiracy theories. Google “D.B. Cooper,” and if you are like me, you’ll get a little thrill at the fact that he pulled off something that seems so impossible today.

We Americans have always had a soft spot for the outlaw. We love Robin Hood, Bonnie and Clyde, Jessie James, and western movies in which the “bad guys” win. I am regularly forced to attend children’s birthday parties at which the honoree has chosen pirates—brigands of the seas—as the theme. Outlaws are people who gain our respect despite living outside of the law—or perhaps because they’re able to do so. They reveal our collective ambivalence about some of the laws that we pass, and whether these laws should really apply to all of the people, all of the time.

After all, there are now so many laws, and none of us follow all of them. Criminal law scholars from a variety of perspectives see ours as an era of over-criminalization. The obvious example  is traffic-related laws. The fact is that everyone is always breaking some traffic law (speeding, not stopping long enough at a stop sign, operating a vehicle with a burned out tail-light). But such laws are only enforced some of the time—something called selective enforcement. So while it’s against the law to drive with an expired inspection sticker, one is more likely to get pulled over for that offense late at night if one is driving in a high-crime neighborhood—or, perhaps, if one happens to be a person of color.

At a moment when everyone is thinking about the criminal-justice system, to the point of being wary about turning on the news in the morning to find out what new racially tinged violence has occurred, we might reconsider what it is that distinguishes an outlaw from a criminal in all of our minds. One factor that we cannot ignore is race. The outlaws with whom white Americans most often sympathize are white.

Think for a moment about our fascination with biker gangs. The very popular and recently concluded seven seasons of Sons of Anarchy confirms that we sympathize with (attractive) men on motorcycles who commit crimes. And those of us who may not have tuned in to watch a biker-gang epic may have sympathized with anti-heros like Tony Soprano (The Sopranos) who struggled with the modern-day problems of running a mob, or with Walter White (Breaking Bad) and his complicated descent into crime. Or, in the series Justified, the relationship between Boyd Crowder, a surprisingly sympathetic born-again bank-robbing white supremacist and drug runner, and US Marshal Raylan Givens who is not afraid to break the rules on how police are supposed to treat suspects to make sure justice is done.

But this is not confined to television dramas. Last year, Charles Blow wrote about the difference between “bikers” and “thugs” in the wake of a deadly biker gang shootout in Waco, Texas.

The words ‘outlaw’ and ‘biker,‘ while pejorative to some, still evoke a certain romanticism in the American ethos. They conjure an image of individualism, adventure, and virility. There’s an endless list of motorcycle gang movies. A search for ‘motorcycle romance’ on Amazon yields thousands of options. Viagra, the erectile dysfunction drug, even has a motorcycle commercial.

While ‘thug life’ has also been glamorized in movies, music and books, its scope is limited and racialized. It is applied to—and even adopted by—black men. And the evocation is more Menace II Society than Easy Rider. The pejorative is unambiguous.

A sociologist at Coastal Carolina University looked at how residents of South Carolina’s Myrtle Beach area viewed two different festivals for motorcycle enthusiasts held there each May, one that primarily attracts white bikers, one that attracts blacks. Analyzing readers’ comments in online newspaper stories about the events, he found that the black bikers were regarded “underclass criminals who attend the rally to steal and murder,” while the white bikers were framed as “exemplars of American Individualism,” whose disregard of the new rules was “celebrated as defiant acts against authority.”

This kind of analysis can easily be extended to our ongoing public debate regarding selective enforcement of our drug laws. In what we feel about those who use and sell drugs—actions that account for the incarceration of 46 percent of the individuals in federal prison—race significantly affects whether we consider those actions criminal acts or consequences of unfortunate addictions. Much attention has been recently devoted to a heroin epidemic sweeping through our country, an epidemic in which a strikingly high number of users are white and middle class. As the New York Times reported last fall:

When the nation’s long-running war against drugs was defined by the crack epidemic and based in poor, predominantly black urban areas, the public response was defined by zero tolerance and stiff prison sentences. But today’s heroin crisis is different. While heroin use has climbed among all demographic groups, it has skyrocketed among whites; nearly 90 percent of those who tried heroin for the first time in the last decade were white.

The director of the White House Office on National Drug Control Policy, Michael Botticelli, recently said that “[b]ecause the demographic of people affected are more white, more middle class, these are parents who are empowered…[t]hey know how to call a legislator, they know how to get angry with their insurance company, they know how to advocate. They have been so instrumental in changing the conversation.” And that conversation is selectively removing the criminal stigma from a growing number of people caught up in the up in the illegal use of drugs.

As William Stuntz so aptly argued in The Collapse of American Criminal Justice, selective enforcement and racial bias all too often travel together. And not just in our popular imagination, but in our legal system as well.

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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