Is Looking “Black” a Crime?

An Oklahoma lawmaker is trying to outlaw hoodies—which would make this the 11th state to have such a law. And the latest form of punishment imposed on people of color for the way they dress.

If you’re Black, you are risking life and liberty if you wear your hair the way it naturally grows out from your scalp. Or if you sag your pants. Or if you wear a hoodie. Any one of these “crimes” has been cited as a viable reason to punish a person by kicking her out of school. Fire him from his job. Even lock him up. If that person is Black.

It’s not impossible to imagine a time when the mere act of being outside while Black is punishable by law.

You think I’m being dramatic? Senator Don Barrington, a Republican in Oklahoma, wants to make wearing hoodies illegal in a state that already has a near-century-old law banning hoods and masks drafted in the 1920s to help combat crimes from the KKK. Oklahoma is not the first to propose such a law, and it will likely not be the last. Ten states, including California, Florida, Washington D.C., and New York, have anti-hoodie laws, and nationwide, some schools, stores and business establishments prohibit the ubiquitous garments on their premises, which they claim is a way to help deter crime by preventing people from masking their identities.

But let’s face it: This law is not targeting the hoodie-loving Mark Zuckermans and Justin Timberlakes and Biebers of the world. This is a thinly veiled attempt to criminalize and control Black communities for profit, just the latest in a long history of policing Black bodies that is rooted in slavery and its aftermath. Because if we really wanted to combat crime, we wouldn’t be wasting our time with something so trite as issuing fashion citations. We’d tighten our lax gun-control laws.

Barrington’s proposed law, which he drafted and could be introduced, ironically, in February during Black History Month, would make wearing “a mask, hood or other covering either while committing a crime or in order to intentionally conceal one’s identity,” a misdemeanor subject to a fine of $50 to $500 and up to a year in jail. It would exempt masks worn on Halloween or to masquerade balls, religious head coverings, or people just wearing hooded sweatshirts as they go about their regular daily business.

The bill allegedly was hatched because of robbers who were caught on surveillance cameras wearing masks or hoodies to obscure their faces. As the Huffington Post reports, “The intent of Senate Bill 13 is to make businesses and public places safer by ensuring that people cannot conceal their identities for the purpose of crime or harassment … Similar language has been in Oklahoma statutes for decades and numerous other states have similar laws in place,” Barrington said. “Oklahoma businesses want state leaders to be responsive to their safety concerns, and this is one way we can provide protection.”

Attorney James Siderias of Oklahoma City disagrees. “I think this is a violation of an individual’s right to choose what they want to wear as long as it doesn’t violate the realm of public decency and moral values, and I think this could be very problematic,” he told HuffPo.

But since 2012, the image of a hoodie has come to symbolize Trayvon Martin, the 17-year-old murdered in 2012 by George Zimmerman, whose 2013 acquittal sparked protests around the nation. Protesters, including members of Congress and NBA star LeBron James, wore their hoodies—Time featured the garment on their cover with the slogan “After Trayvon.” The now-popular phrase “Hoodies up!” is an expression of grief and resolve of a people determined to challenge a bloody and racially unjust status quo.

And yet, the pretext of the laws banning wearing them “is about being able to stop young African American males. Hoodie is code for ‘thug’ in many places and I think businesses shouldn’t be in the business of telling people what to wear,” said CNN legal analyst Sunny Hostin after Mounds Mall in Anderson, Indiana, outlawed hoodies last March.

Hostin compares bans on hoodies to those on sagging pants. “When do we get to a place in our society where we stop … targeting young Black men so there is a pretext for being allowed to escort them out of a mall simply because of what they’re wearing?”

“These policies are racist at their core because both in the U.S. and in the U.K. the hoodie is racialized as attire worn by Black and Brown working-class men and boys,” said Tanisha Ford, an assistant professor of women, gender and sexuality studies at the University of Massachusetts, Amherst. “Hoodie-wearers are inherently read as criminals. Laws like these also reinforce stop-and-frisk policies. They communicate that a law-enforcement officer has just cause to stop, question, and even detain someone simply for wearing a hoodie. And we already know that people of color are far likely to be stopped and frisked than their White counterparts. In essence, Oklahoma is becoming an example of everything that’s wrong with the police state.”

Fox News host Geraldo Rivera, who is Puerto Rican, ignited controversy when, shortly after Trayvon’s murder, he tweeted that, “His hoodie killed Trayvon Martin as surely as George Zimmerman,” then tried to rationalize his racist comment by claiming that he was simply sharing “common sense” for minorities. He said that he was “reminding minority parents of the risk that comes with being a kid of color in America.” Rivera compounded his victim-blaming screed by criticizing Trayvon’s parents for letting him go out wearing the garment. “But I am urging the parents of Black and Latino youngsters particularly to not let their children go out wearing hoodies,” Rivera insisted, citing his own “dark-skinned” son as motivation for his concern.

But it doesn’t stop at hoodies with legislators. For years, they have had it in for sagging pants, which are associated both with hip-hop and prison cultures, and synonymous with “urban youth”—code for young Black and Latino boys and men who wear pants far below their waists and sometimes below their entire butts so that they walk like penguins or Charlie Chaplin. Yes, many may find the look to be ridiculous, but it is more an expression of adolescent and teen rebellion guaranteed to gross out and annoy their elders than a symbol of gang or criminal affiliation.

As the New York Times reported in 2007, “Sagging began in prison, where oversize uniforms were issued without belts to prevent suicide and their use as weapons … Behind the indecency laws may be the real issue— the hip-hop style itself, which critics say is worn as a badge of delinquency, with its distinctive walk conveying thuggish swagger and a disrespect for authority. Also at work is the larger issue of freedom of expression and the questions raised when fashion moves from being merely objectionable to illegal.”

There are anti-sagging measures in Louisiana, where it has been illegal since 2007 in Delcambre, a tiny town of 2,231, 80 miles southwest of Baton Rouge. You can be charged with fines of up to $500 or a six-month prison sentence. Mansfield, a town of 5,496 near Shreveport, levies fines of up to $150 plus court costs or up to 15 days in jail. In South Carolina, two young Black college students were arrested and charged with disorderly conduct after a security guard at a Waffle House told them to pull up their pants or leave the restaurant. In Indiana, a 21-year-old was arrested after a police officer told him to pull up his pants and he replied that he was “just swagging.” Since saggy pants were not a criminal offense, he was arrested for public intoxication and disorderly conduct.

On a US Airways flight, a 20-year-old Black male passenger who plays on the University of New Mexico football team was removed from the plane and arrested after he refused to pull up his pajama bottoms to cover his exposed boxers on a flight from San Francisco to Phoenix. High-school students in Florida, Mississippi, and South Carolina have been suspended from school for wearing sagging pants, and some suburban Illinois schools are enacting or considering fining parents for their children’s’ sagging pants.

A high court has weighed in on this issue. A summary of federal legislation related to sagging states that a New Mexico federal court determined that a student didn’t have the first Amendment right to sag. The student argued that he was conveying a message of African-American heritage and hip-hop fashion and lifestyle. The court rejected his claim, with the judge writing that, “Sagging is not necessarily associated with a single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States.”

Criminalizing Black and Latino people for clothing or hairstyles is nothing more than a way to feed the school-to-prison pipeline, one of America’s most profitable industries. This trend pushes “at-risk youth,” some categorized that way for nothing more than their skin color, out of schools and into the juvenile (in)justice system. The goal: to groom an entire generation of young people for futures behind bars and foreclosure opportunities for them to become full-fledged productive citizens.

Even Black hair has been deemed grounds for firing, usually targeting women. All the way back to post-slavery New Orleans in the 1700s, free women of color were required to wear head wraps and were forbidden from wearing fine clothes, plumes, or jewelry in their hair, to connect them back to their “slave station.” Though the women turned the head wraps, known as tignons, into fabulous fashion statements, the practice was still oppressive and unjust.

Flash forward three centuries.

In 2014, Jessica Sims found her 12-year Naval career cut short when she refused to comply with new regulations to cut off her natural hair or wear a wig. After wearing her natural hair for nearly a decade, Sims was notified that her hairstyle suddenly violated military standards and kept her from wearing gas masks and safety helmets, and she was discharged.  

In March 2014, the U.S. Army released new rules about hairstyles, tattoos, grooming, and uniforms that banned women from wearing twists, multiple braids, or cornrows bigger than a quarter of an inch, or dreadlocks. After a backlash from Black soldiers that included a petition on the White House website, and intervention from the Congressional Black Caucus, Secretary of Defense Chuck Hagel ordered that the armed services revise its definitions of forbidden hairstyles and eliminated such offensive terms as “matted and unkempt” from grooming rules.

Black women as diverse as a probation officer outside of Atlanta, a meteorologist at an ABC affiliate in Louisiana and a waitress at a Hooter’s in Baltimore were all fired for issues relating to their hairstyles or colors. And several times a year we see news stories about young Black girls suspended or expelled from school for wearing natural hairstyles.

In essence, Black bodies are inherently seen as problematic. Whether the issue is ostensibly attire such as hoodies or sagging pants, natural or highlighted hair, the real underlying issue is skin color, isn’t it?

And just as Black bodies were considered to be more valuable property enslaved on plantations back in the day, today they are considered to be more valuable when they’re being arrested, fined, locked up or fired rather than free.

This country never knew what to do with Black people once it couldn’t force us to work for free from birth to death. So these laws and policies around clothing deemed “thuggish” and threatening are driven by the fact that the USA still needs us to be profitable, by any means necessary. And any time we begin to make progress, get ahead, or begin to make a way out of no way, we are threatened with laws that add up to slavery by another name.  

Hoodies weren’t perceived as threatening until Trayvon. Authorities want to ban hoodies but not guns, sagging pants but not police murdering unarmed Black people, natural hair but not unnatural racist discrimination.

It’s not just an insult and injustice; it’s a fucking travesty. Hoodies and sagging pants have become like a broken taillight fueling a traffic stop: an excuse to assault us with broken windows, stop-and-frisk and trumped-up arrests and attacks that drive municipal revenues and feed the prison pipeline—another economic driver that turns humans into fodder for injustice. Black people are still regarded as a cash crop, and any excuse to rope us into the system or throw us out of our jobs, or keep us from acquiring them, will do, as long as we’re kept down and out.

Monica Miller, an assistant professor of religion and Africana studies at Lehigh University, breaks down the problems inherent in the Oklahoma anti-hoodie bill: “The proposed Senate Bill 13 … confuses, dumbs down, conflates and flattens notions of violence/protection to and with clothing and personal choices in fashion,” she told me.

“Such a bill would perpetuate and continue the wrongly titled idea that personal/individual choices, in things such as sartorial aesthetics, says something about ones’ [capacity for] criminality (or lack thereof), sidestepping much needed public discussion and focus on the structural realities and contexts of “crime” and those disproportionately policed as criminal,” said Miller. The bill also “incorrectly assumes that certain styles of clothes, such as the wearing of a hoodie, conceals the intent of identities that don them, thus furthering the misguided thinking that one can read and assume criminal intentionality based on judging a book by its cover.”

Where are the concerns about our rights, our protections from crime, our personal freedoms? This isn’t about hair, pants, or hoodies—it’s about the continued obsession with controlling Black lives and forestalling progress by focusing on superficial fashion choices. Clothing doesn’t commit crimes, attack, or kill people. Let’s look at the conditions that feed poverty; let’s look at the big picture of mass incarceration and harassment; let’s look at an increasingly militarized police presence in major cities and murders of unarmed Black people that go unchecked.

With all this concern about what Black and Brown people are wearing, why are these same legislators not obsessing over open-carry laws, where we see White people brazenly walking around public spaces with semiautomatic weapons in full view, while citing their Constitutional rights to bear arms when confronted by police? It goes without saying that the widespread denial of this contradiction is a sign of mass psychosis. A crime of fashion never killed anybody, now, has it?