THE POLICING IN AMERICA SYMPOSIUM: Rafa Esparza’s Red Summer

August 16th, 2017

Yxta Maya Murray*

This essay analyzes the contributions that performance artist Rafa Esparza’s 2016 performance art piece  Red Summer offers to legal analyses of police brutality and police killings of people of color.  Building on the Demosprudence jurisprudence of Lani Guinier and Gerald Torres, as well as the author’s study of “artifacts” (that is, artwork that creates meaning of legal significance), the author considers how Esparza’s invocation of grief and anguish combats official disdain of anti-police brutality social movements and etiolated legal responses to police killings.

Murray photo

On Saturday, August 13, 2016, from dawn to dusk, performance artist Rafa Esparza carved weapons out of dead trees in a small clearing of Los Angeles’s Elysian Park.  His piece, commissioned by the Hammer Museum in Los Angeles for its Made in L.A. biennial exhibition,[1] was titled  RED SUMMER, freedom is an endless meeting.  And I don’t miss your heat.  But here we are again (“Red Summer”).[2] 

Red Summer memorializes the year 2015, which Esparza assesses as “the bloodiest in the recorded history of police killings in the United States.”[3]  In an effort to bear witness to that period of atrocity, Esparza stood in a drought-burned patch of the park that sits within hearing distance of the Los Angeles Police Department’s (“LAPD”) nearby shooting range.  Esparza wore a politics-of-respectability[4] business suit with a white tie and grey Nike sneakers.  A large bulls-eye glimmered on the back of his jacket.  Formed out of hundreds of yellow, orange, blue, and black sequins that had been stitched carefully into the fabric, it resembled a wound or a bruise.  Esparza, a tall and powerfully built man, stood in a circle of black, fuzzy eucalyptus trees. A few hundred feet away, six silent audience members (including the author) kept watch.  Most of them huddled in lawn chairs beneath a patchy shadow cast by one of the grove’s zombie eucalypti.  Esparza did not look at them or acknowledge them.  In one hand he held a knife, and in another he grasped a stick he had torn from one of the tree branches that had fallen to the dry ground.  The sun beat down.  He wore no hat.  The sweat beaded on his forehead.  He slowly and patiently whittled his stick into a dagger while the LAPD officers practiced their audible marksmanship.

Ka-pang.  Ka-pang.  Ka-pang.

When the shots rang out, Esparza would fall to the earth as if dead, his arms stretched out beside him.  Then he would get back up to his knees, dust himself off, stand up, and recommence his work.

Esparza was born in 1981 in Los Angeles and grew up in Pasadena.[6]  Trained in fine arts at East Los Angeles College and UCLA, he has worked in the mediums of sculpture and painting. [7] These days he makes his name through endurance performance. [8]  His endeavors recall the politically-minded spectacles of Marina Abramović,[9] who once froze herself on a block of ice after carving a pentacle (a symbol of Communism) into her stomach, and U.S. artist Ron Athey,[10] who has used physical piercing and bloodletting to critique a homophobic Christian church.

Esparza, a gay Chicano, also takes aim at political repression.[11]  He does this through body estrangement and by engaging himself with tierra, or earth.  In April 2011, Esparza performed Bust[12] in view of Los Angeles’s Twin Towers Correctional Facility, which has a population that is nearly 80 percent[13] Black and Latino.  Esparza placed himself on a sidewalk across from two bail bond shops and used slow, persistent hacks of a chisel to break out of a block of rough concrete[14].  In 2014, he presented Escarbando:  Dedicaciones para Mexico y Los 43.[15]  In this action he dug a hole in an abandoned Mexicali street for three hours in remembrance of the forty three students from Ayotzinapa Rural Teachers’ College who went missing in Guerrero that same year.[16]  And in 2015, he performed I have never been here before. [17]  He built an elliptical performance space within Los Angeles Contemporary Exhibitions’ gallery out of 5,000 adobe bricks that he fashioned with the aid of his father[18] (as well as assistants).

Red Summer also explores these themes, as Esparza uses earth and body extremity to rail against police killings.  During his performance, Esparza spent the day withstanding Elysian Park’s parching heat and his own fatigue to whittle a stack of small spears.  These frail and useless totems of self-defense proved powerful metaphors.[19]  In 2015, LAPD members shot 38 people.[20]  Eight of these, about 21 percent, were African-American.[21]  Twenty-two, about 58%, were Latino.[22]  African-Americans make up 9% of the population of Los Angeles, and Latinos make up 48%.[23]

In staging Red Summer, Esparza offered a key piece of intelligence for a law and politics addressing police brutality that tears apart the lives of people of color:  He expressed the anguish and existential disarray caused by the seemingly endless reports of police murders of civilians.  By ritually re-enacting death-by-officer in the dry and dying forest, Esparza created a mounting and sometimes intolerable psychological catharsis.

This confrontation with agony does not find an easy place within the law.  Scholars have observed that lawyers pride themselves on their refusal to engage with incendiary feeling, primarily because of their beliefs that emotions betray rationality, and that their indulgence can call the law’s legitimacy into question.[24]  But “law and the emotions” scholars question this received wisdom.[25]  As Kathryn Abrams and Hila Keren observe:  “[T]he self-conscious operation of affective response [can] . . . humanize and strengthen the task of adjudication, helping judges to understand their daunting power and its implications for the lives of those before them.”[26]

Yet how can we really know how people feel about police brutality?  Does it suffice to say merely that many people of color might be upset or chagrined?  In the days after Charlotte, NC, District Attorney Andrew Murray declined to press charges against Officer Brentley Vinson for his September 20, 2016 killing of Keith Lamont Scott, city officials  described the emotional impact of Murray’s decision as follows:  “We recognize that for some members of our community, this news will be met with different reactions.  No matter where you stand on the issue, the events surrounding the Scott shooting have forever changed our community, and we intend to learn from and build a stronger Charlotte.”[27]  This muted and disengaged description of the community response to Scott’s killing buried the real, and far more woeful Charlotte reply, which was full of rage and tears.[28]  Even more egregious, when a jury acquitted Caesar Goodson, Jr., of the murder of Freddie Gray in Baltimore, MD, in June 2016, city Fraternal Order of Police President Gene Ryan said the group was pleased with the ruling and that “[i]t [was] time to put this sad chapter behind us.”[29]

The lack of officer responsibility combined with perceived false official empathy leaves people of color with no healthy connection to the state.[30]  Charlotte police had already come to realize after the death of Scott that “[p]rotesters perceived them as indifferent or apathetic to their concerns,”[31] and the anodyne press release certainly could not have helped.  Also, after Goodson’s acquittal and Ryan’s statement, an atmosphere of despair and numbness settled over West Baltimore.[32]

But these dismissive responses to the psychic aftershocks of police brutality pale in comparison to the alarming performance of Jeff Sessions, Donald Trump’s newly-appointed Attorney General as of this writing.[33]  In 2015, Session took part in a Senate subcommittee hearing titled The War on Police: How the Federal Government Undermines State and Local Law Enforcement.[34]  Here, Sessions blithely, and sometimes merrily, criticized the national protests against the killing of Michael Brown and the resulting consent decree that the Civil Rights Division at the U.S. Department of Justice reached with the city of Ferguson, MO.[35]  Sessions said:

[T]he marches and protests about police do have the tendency to cause [the police] to . . . stay under the shade tree and not walk the street like community based policing . . . . [but]. . . . Police  . . . have to be able to defend themselves, do they not?  . . . . And sometimes that can lead to misunderstandings and false claims by the criminal against the police officer. . . . I keep thinking of that Gilbert and Sullivan . . . . The Pirates of Penzance [lyric]:  “The Constabulary duties are to be done, to be done, the policeman’s lot is not a happy one.”[36]

Here, like the Charlotte officials and Ryan, Sessions pivoted almost immediately away from the specter of thousands of traumatized protesters.  But then he went on to insult the people’s outcry by using it as an opportunity for political posturing and bizarre recitations of song.[37]

It is difficult to imagine why legal and political actors may respond to police murders, and stunning public grief, with such callousness.  Members of the community and legal scholars might give them the benefit of the doubt, and posit that these officials have not had the opportunity to understand how people feel.  Indeed, it can be very challenging to experience authentic compassion[38] — a more arduous task for some, perhaps, than for others.[39]

But beyond attempting to comprehend the stunning psychologies of Charlotte, Baltimore, and U.S. leaders, we may also worry that their responses to the immense suffering created by police abuse creates propaganda that diverts prosecutors, judges, juries, legislators, and the voting public from that catalyzing torment.  It is much easier to quickly skip over a “sad chapter” or explain events away with the normalizing specter of “false[ly] claim[ing] criminals”[40] than to dwell on the despair of others.[41]  Yet without sustained public and legal attention to that pain, reform may not come.[42]

How are we to humanize law, then?  How might we redirect a public and legal focus onto that which is almost unspeakable?  The advocates of the law and literature school of thought look to novels and short stories to understand the overwhelming emotions that the justice system provokes.[43]  Legal scholars also concentrate on visual culture – or, what I have described in other word as “artifacts” — in order to better understand the world in which we live and the way that law operates in it.[44]  So, too, public officials, legal actors, and those they represent might look to relevant performance art when contemplating whether, and how, to respond to police brutality.  Such art details the emotive world.[45]  Moreover, a legal scholarly attention to performance art that expresses terror and sorrow over police killings finds synchronicities with the work of Gerald Torres and Lani Guinier, whose 2014 article  Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements illustrates how “social movements and organized constituencies” create “authoritative interpretive communities” within the law:[46]  Like social movement activists, performance artists and their audiences can also build legitimate interpretations of legal forces and their traumatic effects.

Rafa Esparza’s rigorous, scorching work offers a case in point.  Red Summer aids our comprehension of the events that shook Ferguson, Baltimore, St. Paul, Baton Rouge, and the other cities that joined this unfortunate club.[47]  On that Saturday in Elysian Park, Esparza whittled, stumbled, fell, and got back up over and over again, as the bulls-eye shimmered on his back.  Ka-pang, ka-pang.  The dust clung to his suit.  His tie had become loosened.  The sweat streamed down his face.  His little heap of daggers looked like useless toys or trash.  His spectators watched with exhausted yet attentive faces.

Esparza inhabited the dying forest and tried to withstand the killings of hundreds of men and women of color by the police, and in so doing translated for his spectators the horror that seemed to escape the likes of Charlotte officials, Ryan, and Sessions.  The small audience assembled in the vanishing shade suffered, too, as they watched Esparza take the agonies of these deaths into his own targeted body.  Together, we created an authoritative interpretive community[48] wherein we tried to fathom the destabilizing tragedies that were the police killings of Donnell Thompson, shot in Compton, Los Angeles, on July 28, 2016[49] and Jesse Romero,[50] shot in Boyle Heights, Los Angeles, on August 9, 2016.

Esparza’s art expresses minorities’ feelings of powerlessness in the face of state aggression, but it also resists violence with the resilience that many of us are finding increasingly difficult to muster.  It is time for legal actors to pay attention to such emotions, and the artwork that expresses them, even though it will require patience and cause discomfort.  In the face of official uncaring, sorrow, and the ever-widening chasm that yawns between the state and people of color, such a difficult contact with police brutality, and the fear and grief that it generates, would be well worth the work.

*Professor, Loyola Law School.  With many thanks to Sasha Natapoff, Eric Miller, L. Song Richardson, and the editors of the Fordham Urban Law Journal Online.

[1] Made in L.A. 2016: a, the, though, only, Hammer Museum, https://hammer.ucla.edu/made-in-la-2016/ (last visited Feb. 5, 2017).

[2] Off-site program: RED SUMMER, freedom is an endless meeting.  And I don’t miss your heat.  But here we are again, Hammer Museum, https://hammer.ucla.edu/redsummer/ (last visited Feb. 5, 2017).

[3] See id.  See also Dylan Petrohilos, Here’s How Many People Police Killed In 2015, ThinkProgress (Dec. 28, 2015), https://thinkprogress.org/heres-how-many-people-police-killed-in-2015-e9e78c890966#.on5vxbcu6 (putting the count at 1,186 people).

[4] “[T]he politics of respectability [requires that] . . . a ‘stigmatized minority’ must make every effort to present itself so as to enhance the ‘reputation of the group’ and ‘avoid the derogatory charges lying in wait in a hostile environment.’” Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 1039 (2002) (quoting Randall Kennedy, Race, Crime & the Law, at 17 (1997))

[5] Doug Smith, Recovery Plan Lies Dormant as Elysian Park’s Exotic Trees Die Off, L.A. Times (Dec. 21, 2016, 3:00 AM), http://www.latimes.com/local/california/la-me-elysian-park-dieoff-20151221-story.html.

[6] See Rafa Esparza: mas gestos y mas caras, Hammer Museum, https://hammer.ucla.edu/made-in-la-2016/(last visited Feb. 23, 2017) (“Rafa Esparza was born in 1981 in Los Angeles.”); Carolina A. Miranda, Artist Rafa Esparza is Using 5,000 Adobe Bricks to Make a Building-Inside-a-Building in Hollywood, L.A. Times (July 23, 2015, 8:30 AM), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-rafa-esparza-uses-5000-adobe-bricks-to-construct-a-building-inside-a-building-at-lace-in-hollywood-20150722-column.html#page=1. (last visited Feb. 23, 2017) (“Esparza, 33, was born and raised in Pasadena, the son of Mexican immigrants from Durango.”).

[7] See Rafa Esparza: mas gestos y mas caras, id. (“Esparza studied at East Los Angeles College before transferring to the University of California, Los Angeles, where he received his BFA. He currently works in installation, sculpture, drawing, painting, performance, and other mediums and has presented his work at a variety of sites, including traditional fine art contexts and community-based platforms as well as outdoor public locations that he has independently sought out and organized.”).

[8] See Tatiana A. Koroleva, Subversive Body in Performance Art 44 (2008) https://books.google.com/books?id=fZEBXX9MAvkC&pg=PA44&dq=endurance+performance+art&hl=en&sa=X&ved=0ahUKEwj34MW72KnSAhUIwmMKHUluCTMQ6AEIGjAA#v=onepage&q=endurance%20performance%20art&f=false (“Questioning the physical limits of their bodies, artists, working in the performance of endurance, strived for the overcoming of the singularity of the subjective body.”).

[9] See Marina Abramović, Thomas Lips, Lima (undated) http://www.li-ma.nl/site/catalogue/art/marina-abramovic/thomas-lips-1975/7215.

[10] See, e.g., Russell MacEwan, Ron Athey, ‘Body Art,’ YouTube (Oct. 26, 2011), https://www.youtube.com/watch?v=rBc1vul9JUI (depicting documentary about artists, including Athey, who use blood, flesh, and pain in their artwork).

[11] On Esparza’s identity, see note 17, infra.

[12] Dorian Wood, Excerpt from “Bust” by Rafa Esparza, YouTube (Apr. 12, 2015), https://www.youtube.com/watch?v=4ziORnDkQP0.

[13] JFA Institute, Evaluation of the Current and Future Los Angeles County Jail Population 15 (2012), http://www.jfa-associates.com/publications/ppsm/Los%20Angeles%20Jail%20Projections.pdf (“The population is largely male (88%) and largely non-white (49% Hispanic, 31% Black, and 15% white) with an average age of 34 years. Approximately 13% of the population is age 50 years or older while 28% are [sic] between the ages of 18 and 25 years.”).

[14] See note 12, supra.

[15] Rafa Esparza, escarbando: dedicaciones a Mexico y Los 43, Vimeo (undated), https://vimeo.com/140491934.

[16] Patrick J. McDonell & Celia Sanchez, It’s Been Two Years Since 43 Mexican Students Disappeared, and We Still Don’t Know Exactly What Happened to Them, L.A. Times (Sept. 26, 2016, 6:35 PM), http://www.latimes.com/world/mexico-americas/la-fg-mexico-ayotzinapa-20160926-snap-story.html.

[17] Carolina A. Miranda, supra note 6.

[18] Oscar Garza, Artist Rafa Esparza Moves a Load of Earth for ‘Made in LA’ Exhibition, 89.3 KPCC: The Frame (June 9, 2016), http://www.scpr.org/programs/the-frame/2016/06/09/49512/artist-rafa-esparza-moves-apprehension-and-earth-t/ (“The very first time that I asked him to help me make bricks is, um — we actually weren’t on speaking terms. I had just come out. I think for my father, at the time, it was very easy for him to not acknowledge and to maybe, perhaps, forget that I’m gay.”).

[19] On the difficult-to-impossible options for outsiders to challenge police brutality, see Eric J. Miller, Police Encounters with Race and Gender, 5 U. C. Irvine L. Rev. 735, 738 (2015) (“To the extent that an officer places her authoritarian style of policing above the right of the civilian to contest that policing and does so in discriminatory ways, the officer not only engages racial or gender or class discrimination but also denies the civilian a form of equal participation in the political community. In practice, then, the republican idea that citizens can actively contest police actions is currently the least likely to work for women and people of color.”).

[20] Kate Mather & James Queally, More Than a Third of People Shot by L.A. Police Last Year Were Mentally Ill, LAPD Report Finds, L.A. Times (Mar. 1, 2016, 10:48 PM), http://www.latimes.com/local/lanow/la-me-ln-lapd-use-of-force-report-20160301-story.html.

[21] Id.

[22] Id.

[23] Id.

[24] See, e.g., Richard A. Posner, Emotion versus Emotionalism in Law, in The Passions of Law 310 (Susan A. Bandes ed., 1999) (“One might put it this way:  emotion short-circuits reason conceived of as a conscious, articulate process of deliberation, calculation, analysis, or reflection.”).

[25] See, e.g., Susan A. Bandes & Jeremy A. Blumenthal, Emotion and the Law, 8 Ann. Rev. L. & Soc. Sci. 161, 162 (2012) (“In the legal realm, the term [law and the emotions] has long functioned as a catchall category for much of what law aspires to avoid or counteract: that which is subjective, irrational, prejudicial, intangible, partial, and impervious to reason.”).

[26] Kathryn Abrams & Hila Keren, Who’s Afraid of Law and the Emotions? 94 Minn. L. Rev. 1997, 2007 (2012).

[27] Michael Gordo, Marsh Washburn, Ames Alexander & Fred Clasen-Kelly, District Attorney Exonerates Officer, Denounces Rumors in Killing of Keith Scott, The Charlotte Observer (Nov. 30, 2016, 10:58 AM), http://www.charlotteobserver.com/news/special-reports/charlotte-shooting-protests/article117921218.html.

[28] Elizabeth Leland, How will Charlotte answer Keith Lamont Scott’s death, week of protests?, Charlotte Observer, Sept. 24, 2016, : http://www.charlotteobserver.com/news/local/crime/article103995666.html#storylink=cpy

(“Within two days, the city would become known for an explosion of violence set off by the shooting death Tuesday afternoon of 43-year-old Keith Lamont Scott as he waited for his son to arrive on a school bus.”).

[29] Lynh Bui, Derek Hawkins & LaVendrick Smith, Baltimore Officer Acquitted of Murder, Other Charges in Freddie Gray Case, Wash. Post (June 23, 2016), https://www.washingtonpost.com/local/public-safety/judge-to-deliver-verdict-for-police-officer-charged-with-murder-in-freddie-gray-case/2016/06/22/7a0e015b-3b12-4294-8b72-84a36e1715cd_story.html.

[30] See Leland, note 28, supra (“’It’s like we’re being ignored when we are crying out for help.’”) (quoting Aaron Harris).

[31] Keith Scott Killing: Protesters in Charlotte Upset over Lack of Charges, MyFox8.com (Dec. 1, 2016, 1:33 PM), http://myfox8.com/2016/12/01/keith-scott-killing-protesters-in-charlotte-upset-over-lack-of-charges.

[32] See Colin Campbell & Andrew Dunn, West Baltimore Residents React to Officer Goodson Acquittal, Balt. Sun (June 23, 2016, 4:13 PM) (quoting Baltimore resident Aaron Burch) (“‘Justice hasn’t been served. Nothing has happened. . . . If nothing is going to happen it’s bound to happen again.’”).

[33] See generally Amber Phillips, 10 Things to Know About Sen. Jeff Sessions, Donald Trump’s Pick for Attorney General, Wash. Post (Jan. 10, 2017), https://www.washingtonpost.com/news/the-fix/wp/2016/11/18/10-things-to-know-about-sen-jeff-sessions-donald-trumps-pick-for-attorney-general.; President Trump Participates in the Swearing-In of the Attorney General, Jeff Sessions, The White House, Feb. 9, 2017, https://www.whitehouse.gov/featured-videos/video/2017/02/09/president-trump-participates-swearing-attorney-general-jeff (last visited Feb. 23, 2017).

[34] 114 Cong. (2015) [hereinafter War on Police], http://www.judiciary.senate.gov/meetings/the-war-on-police-how-the-federal-government-undermines-state-and-locallaw-enforcement (available in searchable form at https://www.c-span.org/video/?400865-1/hearing-civil-rights-policingpractices&start=NaN).

[35] Id. at 1:16:27; see also Consent Decree, United States v. Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo. Mar. 17, 2016) (“[T]he City of Ferguson (“City”) agrees to continue to change how FPD polices, and how it enforces the Ferguson Municipal Code and resolves municipal charges.  This Agreement sets forth terms and requirements for the City and FPD to continue to reorient their approach to law enforcement to focus on community engagement and collaborative partnerships with groups and individuals throughout Ferguson, including those segments of the community that have not previously had strong or positive relationships with FPD or the City.”).

[36] War on Police, supra note 34, at 1:16:27).; see also Ames C. Grawert, Analysis: Sen. Jeff Sessions’s Record on Criminal Justice, The Brennan Ctr. 5 (Jan. 4, 2017) (detailing the “shade tree” comment).

Mr. Sessions’ antipathy to such consent decrees proves no surprise, as he demonstrated his hostility to them in previous writings. See Jeff Sessions, Forward to Michael E. DeBow, Gary J. Palmer & John J. Park, Jr., Consent Decrees in Institutional Reform Litigation: Strategies for State Legislatures, Ala. Pol’y Inst. 3 (2008) (“One of the most dangerous, and rarely discussed, exercises of raw power is the issuance of expansive court decrees. Consent decrees have a profound effect on our legal system as they constitute an end run around the democratic process.”).

The White House has just announced further support of Sessions’ “war on the police” outlook.  On or around January 23, 2017, the White House’s website posted an entry titled Standing Up For Our Law Enforcement Community, which declares: “The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.” Https://www.whitehouse.gov/law-enforcement-community (last visited Feb. 9, 2017); see also Sophie Tatum, White House Website Warns of ‘Dangerous Anti-Police Atmosphere’ in America, CNN (Jan. 23, 2017, 1:59 PM), http://www.cnn.com/2017/01/23/politics/white-house-website-law-enforcement.

[37] By acting in this way, Sen. Sessions may have contributed to public perceptions of the police force and the justice system as being racist.  This development does not just threaten people’s confidence in “the system” and contribute to political malaise.  As L. Song Richardson has shown, public belief in police and official racism, and police officers’ understandings that they are perceived as racist, form powerful forces that contribute to police violence against people of color.  See L. Song Richardson, Police Racial Violence:  Lessons From Social Psychology, 83 Fordham L. Rev. 2961, 2969 (2015) (“Officers who believe black citizens will evaluate them as racist also likely suspect that those same citizens do not respect them and do not view them as legitimate.  As [an important] . . .  study revealed, these anxieties can translate into concerns for their safety when confronting black citizens.”).

[38] See, e.g., Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation:  The Optics of Eminent Domain in Motor City, 23 Geo. J. on Poverty L. & Pol’y 395, 450 (2016) (“‘being with’ another person is an effort to perceive them without illusion.  I risk catastrophic understatement when I admit that this proves a very ambitious aspiration, even among intimates.  Artists, psychoanalysts, and philosophers regret the near or total impossibility of such lucid relations.”).

[39] Evidently, one might be trained in compassion, and those without an education in placing themselves imaginatively in the positions of others will find themselves lacking in that skill. See Helen Y. Weng et al., Compassion Training Alters Altruism and Neural Responses to Suffering, 24 Psychol. Sci. 1171, 1176-77 (2013) (“Individuals who trained in compassion for 2 weeks were more altruistic toward a victim after witnessing an unfair social interaction compared with individuals who trained in reappraisal and individuals in a validation control group.”).

[40] See text accompanying note 36, supra.

[41] See, c.f., Susan Sontag, Regarding the pain of Others 114 (2003) (“Someone who is perennially surprised that depravity exists, who continues to feel disillusioned (even incredulous) when confronted of evidence of what humans are capable of inflicting in the way of gruesome, hands-on cruelties upon other humans, has not reached moral or psychological adulthood.”).

[42] Martin Luther King Jr.’s observations on the roles of pain and empathy in social change will be well remembered here. See Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963), reprinted in Martin Luther King, Why We Can’t Wait 92-93 (1963) (“[W]hen you are harried by day and haunted by night by the fact that you are Negro, living constantly on tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of ‘nobodiness’– then you will understand why we find it difficult to wait.”).

[43] See, e.g., Martha C. Nussbaum, Love’s Knowledge 5 (1990) (“[C]ertain truths about human life can only be fittingly and accurately stated in the language and forms characteristic of the narrative artist.”).

[44]  Yxta Maya Murray, Rape Trauma, the State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631, 1635 (2012) (“My in-depth study of visual arts in connection with rape law . . . . incorporate[s] art’s revelations of women’s buried experience–or, as I conceive of these details, artifacts–into legal understandings.”); Richard K. Sherwin, Introduction:  Law, Culture, and Visual Studies, in Law, Culture and Visual Studies xxxvi

(Anne Wagner & Richard K. Sherwin, eds. 2013) (“It behooves us . . . to cultivate a proper understanding of the visual codes that are operating in the meaning-making process.  The stakes involved in undertaking this task are greatest when it comes to law, for that is where power and meaning converge.”)..

One of the most compelling engagements with visual culture and the justice system will be found in the work of Jonathan Simon.  It bears noting that Esparza’s Bust, see note 12, supra, evokes the psychological immobilization and immurement created by mass incarceration, and as such, resonates as a companion piece to Simon’s evocative study of photographs used in the case of Brown v. Plata, 563 U.S. 493 (2011).  See Jonathan Simon, Mass Incarceration on Trial:  A Remarkable Court Decision and the Future of Prisons in America 146-150 (2014).

[45] See, e.g., Jennifer Doyle, Hold It Against Me: Difficulty and Emotion in Contemporary Art 15 (2013) (“Performance art offers a particularly rich context for exploring questions regarding the presence of emotion, audience, and event.”); Yxta Maya Murray, Inflammatory Statehood, 30 Harv. J. Racial & Ethnic Just. 227, 247 (2014) (looking at the endurance art of Yugoslav performance artists who comprehend the suffering of those who live under tyranny).

[46] Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2745 (2014).

[47] For a partial review of cases, see Daniel Funke & Tina Susman, From Ferguson to Baton Rouge: Deaths of Black Men and Women at the Hands of Police, L.A. Times (July 12, 2016, 3:45 PM), http://www.latimes.com/nation/la-na-police-deaths-20160707-snap-htmlstory.html; see also Fatal Force, The Wash. Post, https://www.washingtonpost.com/graphics/national/police-shootings-2016 (last visited Feb. 9, 2017) (database of persons shot and killed by police in 2016).

[48] See Guinier & Torres, supra note 46.

[49] James Queally, Cindy Chang & Veronica Rocha, Donnell Thompson Jr., 27, L.A. Times:  Homicide Rep., (Aug. 1, 2016), http://homicide.latimes.com/post/donnell-thompson-jr.

[50] Annie Gilbertson, Officer Who Shot 14 Year-Old in Boyle Heights Was on Vandalism Call, KPCC (Aug. 10, 2016), http://www.scpr.org/news/2016/08/10/63460/1-dead-in-officer-involved-shooting-in-boyle-heigh.