A sign that says Racism Is A Virus Too

Racism is still ever present in our justice system.

Despite the efforts of many people, the legal system is still racist—sometimes incredibly so. Case in point, the 2019 criminal trial of a Black man in State v. Andre McKenzie at the Washington State Court of Appeals Division III. At trial, the prosecutor used the term “gorilla pimp” in front of the jury while questioning a detective about the defendant’s activities.

On appeal, Mr. McKenzie argued that the use of the term “gorilla pimp” amounted to prosecutorial misconduct that was so bad nothing could be done to fix the taint. Usually, if a party does not object to something at trial as happened here, the Court of Appeals will not review it. However, to its credit, the Court of Appeals called out the prosecutor and the term “gorilla pimp” for what it was—racist—and went into some detail explaining why (internal quotations omitted):

At this point in our history, we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric. The practice of dehumanizing Black people by analogizing them to primates has an “odious historical context.” From Europe’s colonization of Africa through the eugenics movement at the turn of the 20th century, associating Black people with primates facilitated false beliefs regarding Black people’s evolutionary status, biology, and propensity for hypersexuality and violence. This racist ideology was not purely academic; it spread to mass culture in traveling shows, zoos, and movies such as King Kong (RKO Radio Pictures 1933). This hurtful mischaracterization of Black people has been deeply embedded and continues to this day.

The Court of Appeals said the failure to object does not matter in cases of prosecutorial misconduct involving an appeal to racism because “race-based prosecutorial misconduct shakes the very foundation of a fair system of justice.”

The state tried to use the old excuse “it’s not racist, that’s just part of the lingo,” which the court completely rejected:

Again, we are not persuaded. It is not uncommon for individuals involved in criminal enterprises to use racialized language that is sometimes offensive. That is no excuse for outsiders to do the same. If an individual involved in sex trafficking uses the term “gorilla pimp” during an undercover operation or (unprompted) during testimony at trial, it would likely be appropriate for a law enforcement expert to then explain the meaning of the term. But there is no need or excuse for professionals such as law enforcement or prosecutors to perpetuate the harmful simianization of Black men by using the term gorilla pimp.

The court noted how harmful this type of racist rhetoric can be. It cited studies showing how far and wide ape associations with Black men have spread, even to those who don’t know anything about the historical context of that racist trope.

The Court of Appeals ultimately reversed the defendant’s conviction in April 2022—as it should have—because of the prosecutor’s use of this racist trope. Even though it was only a brief reference, the court recognized that “like wolves in sheep’s clothing, a careful word here and there can trigger racial bias.”

Racism has no place in our justice system. This kind of racist rhetoric has been used for far too long. The Court of Appeals was right to take the action it did and to call out this particular prosecutor for the ugly appeal to racism.

At the same time, it’s important to recognize progress. The reversal of a conviction over a brief mention of a racist term probably would not have occurred ten years ago. This case is an example of the greater recognition of racism in our legal system.

Almost two years ago, the Washington Supreme Court put out an open letter in the wake of the George Floyd killing and protests. The letter is remarkable in that it expressly recognizes the harm that judges and the judicial system have caused because of racism and systemic inequities. The letter calls on the legal community to do better, calling it our “moral imperative.”

In State v. McKenzie, the Court of Appeals required the system to do better by ordering a do-over of the trial without any taint of racist rhetoric.