Revolution is Illegal: Revisiting the Panther 21 at 50

Published July 1, 2021

Revolution is Illegal: Revisiting the Panther 21 at 50

In a recent open letter to prominent Black hip-hop artists, veterans of the Black Panther Party (BPP) argue that in the midst of a virus that disproportionately kills Black people, and pervasive racist state terror, it is essential that artists and activists foster greater continuity between past and present generations of Black resistance. They write: “much of our history in our people’s struggle has been kept away from you and seemingly unavailable to your generation as you reinvent what was done in the past. Our people’s enemies haven’t changed, circumstances and conditions have. History never repeats itself – but it damn sure can rhyme.”

To revisit the history of the BPP is to experience the rhyme of history. Yet, the refrain is not a pleasant one. Indeed, it would be difficult to argue that circumstances and material conditions have improved for Black people in the time since “Black Lives Matter” and “Hands Up Don’t Shoot” supplanted “Black Power” and “Off the Pigs” as ubiquitous rallying cries of Black struggle. It is a sad reality that the BPP 10-Point Platform and Program is just as applicable today as it was when party founders Huey P. Newton and Bobby Seal co-authored it in 1966.  Foreshadowing contemporary abolitionist demands, it called for an “immediate end to police brutality and murder of black people,” as well as “freedom for all black men [sic] held in federal, state, county prisons and jails.” Since that time, racist police violence has continued unabated and the U.S. prison system has expanded exponentially.

This month marks the 50th anniversary of the persecution of the New York Panther 21, a collection of Black radicals falsely accused of plotting to carry out wanton acts of violence across New York City. The protracted battles that emerged around the 21’s arrest and the trial, as well as the judiciary’s exploitative imposition of bail, the carceral system’s brutal treatment of them, and the struggle to defend the existence of Black radical organization, exposed the extent to which Black communities and the U.S. government were (and are) actively engaged in a form of asymmetrical combat. By reexamining the Panther 21 we can apprehend a dialectic of Black radicalism and racist state repression that exceeds the confines of legally sanctioned means of struggle.

The New York Panthers

The BPP was scarcely 3 years old and the New York Chapter had not yet reached its first anniversary when the Panther 21 were captured. In that brief time, the chapter had established offices in Harlem, Brooklyn, and Queens. They held regular political education classes and had organized several “survival pending revolution” programs, including a Free Breakfast for Children program, a Liberation School, and a clothing distribution program. They also advocated for tenants’ rights, led an anti-heroin campaign, and participated in efforts to achieve community control over the police, who were seen not as a source of protection, but as an “occupying army” that forcibly confined Black people within a system of colonial domination.

In 1969, FBI Director J. Edgar Hoover labelled the BPP “the greatest threat to the internal security of the country.” That same year, according to scholar Ward Churchill, 24 Panthers were killed by police, scores more were injured, and at least 749 were jailed. Hoover’s Counterintelligence Program (COINTELPRO) essentially constituted a form of undeclared war against the Panthers. In its efforts to forestall radical social transformation, the FBI was not alone. The NYPD housed a secretive anti-subversive unit called the Bureau of Special Services (BOSS), which had planted at least 6 undercover agents within the chapter from its inception. BOSS was known for targeting apolitical subjects who presented as “blank slates” and recruiting them into the organization before they completed police academy training, so as to prevent them from picking up police lingo.

State actors were particularly concerned with the BPP’s socialist politics, and their combination of community self-help with armed self-defense. In a memo from May of 1969, an exasperated Hoover interpreted the Panthers’ Free Breakfast Program as a ploy designed to “create an image of civility, assume community control of Negroes, and to fill adolescent children with their insidious poison.” In another memo from July, he solicited proposals designed to thwart plans of the New York chapter to utilize the Manhattan-based All Saints Roman Catholic Church School as the site of its programs. Hoover’s claim that the BPP was filling children with poison is ironic in light of Panther Safiya Bukhari-Alston’s recollection that, in an attempt to discourage participation, the NYPD spread misinformation that the Panthers were serving poisoned food.

The Bust

On the morning of April 2, 1969, more than 150 NYPD officers executed a mass arrest of 16 members of the New York chapter. By 11 am, before most of them had appeared before a judge, Manhattan District Attorney Frank Hogan was standing before the media, reciting the spectacular indictment. Twenty-one Panthers were charged with plotting to kill police officers and bomb police stations, rail stations, department stores, government offices, and the Bronx Botanical Gardens. According to former prosecutor Peter L. Zimroth, the indictment was explicitly worded to paint the Panthers as terrorists, disseminate prejudicial information to potential jurors,  and “legitimize warlike responses by the state.”

Each of the Panther 21, some of whom escaped capture and went underground in Algeria and elsewhere, faced up to 170 years in prison. They included Sundiata Acoli (né Clarke Squire), a computer analyst at NASA; Michael “Cetawayo” Tabor, a drug rehabilitation counselor who long struggled with heroin addiction; Afeni Shakur, a school-teacher; Dhoruba bin-Wahad (né Richard Moore), a gang-leader and self-employed painter; and Curtis Powell, a biochemist at Columbia Presbyterian Medical Center. After they pled not-guilty, a State Supreme Court Judge set each of their bails at $100,000, an exorbitant sum that all but guaranteed that most of the Panthers would remain imprisoned for the foreseeable future. Assata Shakur would later write, “it was well known by everybody in the movement that the New York police had kidnapped the most experienced, able, and intelligent leaders of the New York branch and demanded $100,000 ransom for each one.”

Against Law

By February 2, 1970, when the pre-trial hearings commenced, most of the Panthers had been in jail for 10 months. In response to this blatant use of the courts for political purposes, the Panthers engaged in their own political counter-tactic: relentless disruption of court decorum. Through unceasing verbal tirades, they accused their jailers, the prosecution, the judiciary, and the media of engaging in political warfare. At one point, a melee emerged between several Panthers and the police, resulting in injuries on both sides. By month’s end, in response to both these court disorders and to the firebombing of his house by members of the Weather Underground, Judge John M. Murtagh declared an indefinite recess of the proceedings. He promised to resume the trial only after each defendant had submitted a written and signed statement providing their “assurance that the defendants are now prepared to participate in a trial conducted under the American system of justice.”

The Panther 21 maintained a revolutionary disposition, approaching the courtroom as a site of political struggle rather than an arbiter of justice. In lieu of said statement, they submitted an “Open Letter to Judge Murtagh,” a historical critique of what they reframed the “Amerikkkan system of justice.” Collectively authored by the Panther 21, the open letter was transmitted to Murtagh and the public in the form of a written document and tape recording read by Cetewayo Tabor. The Panthers denounced the vaunted liberal principle of equality before the law as hypocrisy and argued that white culture was stricken with a deep-seated “cultural racist phobia” of Black people in general, and particularly of those who resist oppression.

They argued that throughout its historical development, U.S. law has operated as an instrument of ruling class domination and racial criminalization. As evidence, they cited the unbroken chain of racist law: the tacit authorization of racial slavery in the founding documents of the United States; fugitive slave laws that curtailed Black freedom in non-slave holding states; the Supreme Court’s decision in the Dred Scott case; the “Black Codes,” which effectively criminalized Blackness after the Civil War; Ku Klux Klan terror, which persisted through the complicity of the police and courts; and Plessy v. Ferguson, the 1896 case that legalized racial segregation. They further argued that while the Civil Rights Act of 1964 overturned legal segregation, it did so without upending the white supremacist organization of American society. They argued that a narrative of American political development from a Black perspective exposed “[the court’s] remarkable and ingenious talent for interpreting the law according to the needs and interests of the dominant white ruling class.”

The political significance of the 21’s open hostility toward the authority of established law attains deeper political significance when interpreted in relation to the fledgling efforts of Black revolutionary organizations to institute and legitimize new bodies of law. In 1968, citizens of the newly formed Provisional Government of the Republic of New Afrika, which sought to secede from the United States, signed the Declaration of Independence of the Black nation. In the spring of the following year some BPP chapters began organizing Peoples’ Tribunals, makeshift court proceedings in which community members adjudicated conflicts, determined the guilt or innocence of the accused, and handed down penalties on their own authority. The party organ described these tribunals as “the only legitimate and just recourse that Black people have to redress their grievances.” At the same time, the party was in the early stages of organizing a Revolutionary Peoples’ Constitutional Convention where they planned to convene representatives from various radical left organizations on the campus of Howard University in Washington, D.C. in order to author and ratify a new constitution that reimagined the United States as a democratic and anti-imperialist formation. These efforts to delegitimize established law while simultaneously establishing the legitimacy of new law is the sine qua non of revolutionary politics.

The NYC Jail Rebellion

It is remarkable that the Panthers refused to comply with Murtagh’s order even though it extended the trial by 6 weeks, during which they were forced to remain in New York City’s brutal carceral system. The harrowing experience of Panther Lee Berry offers a particularly acute example of what they experienced. Berry was in the Veterans Administration Hospital being treated for epilepsy when the NYPD appeared at his bedside, and he was hauled downtown, arraigned, and saddled with an unattainable bail. Berry was then taken to the Manhattan House of Detention, also known as The Tombs, where he was thrown in a concrete cell with no mattress and held under 23-hour lock-up. Berry remained in the Tombs for eight months, during which he had more than a dozen epileptic seizures for which he received minimal medical attention. At one point, he awoke in a pool of his own blood, having fallen, smashed his head against the concrete floor, bit into his tongue. On another occasion, after failing to stand upon command, a guard savagely beat him with a blackjack.

Lee Berry’s wife, Marva Berry, led a protracted legal and political battle that resulted in her husband finally being transferred to the prison ward of Bellevue Hospital, but while there, his condition only worsened. At Bellevue, Lee Berry developed blood clots, pneumonia, a hole in his lung, and was subjected to an unnecessary appendectomy. His hostile treatment at the hands of penal authorities and medical professionals exemplified the longstanding grievances of incarcerated people across the nation.

Under intense public pressure, the prosecution was forced to sever Berry from the trial and in May of 1970, he was released on a reduced bail amount of $25,000. He was only the second Panther to be bailed out. Back in January, women-led activist groups raised the $100,000 needed to bail Afeni Shakur out of the Women’s House of Detention. The fact that Berry survived his torment and that these exorbitant sums were raised is a testament to the massive political prisoner support and defense apparatus that emerged around the Panthers. Groups such as The Committee to Defend the Panther 21 featured active participation from a range of prominent public figures in entertainment and politics.

Although they were imprisoned for political activism and had achieved something akin to celebrity status, the Panthers were not much different from most of the city’s jail population; of the 14,000 people packed within NYC’s  jail archipelago, the vast majority were Black and Latinx people from economically impoverished and heavily policed communities, who remained incarcerated for months and even years because they could not afford to make bail. These dynamics were forced into the public consciousness when on October 1, 1970, captives in the Branch Queens House of Detention erupted in collective rebellion.

A day earlier, Judge Murtagh had revoked Afeni Shakur’s bail after she arrived to court forty minutes late. The Black Panther attributed the Branch Queens rebellion to Murtagh’s punishment of Shakur and to “the accumulated frustration, desperation and rage of the prisoners” who took “the only form of action that the pigs of the power structure relate to —revolutionary action.”

Although most of the rebellious captives did not belong to a political organization, they identified with the Panthers and the Young Lords, the Puerto Rican to the BPP. They tore through the jail, captured jail personnel as hostages, and opened the cell doors of nine Panther 21 defendants, all of whom were being isolated from the general population on the seventh floor. The rebels elected a leadership committee of six men, including Panthers Lumumba Shakur (Afeni’s husband), Kuwasi Balagoon, and Kwando Kinshassa. That the demands the captives issued to the state had much in common with what the BPP’s 10-Point Platform demanded for Black people outside the prison walls, reflected the abysmal condition of Black life in the urban ghetto. The FBI kept close watch as the rebels demanded the cessation of pervasive state-sanctioned brutality, improvement to prison conditions, better medical care, enhanced access to educational materials, a jury of their peers for the Panther 21, and the immediate reinstatement of Afeni Shakur’s bail.

The rebels maintained control of Branch Queens for 5 days, during which simultaneous insurgencies emerged in The Tombs (in which some Panthers on trial for a lesser-known conspiracy participated) as well as 3 other carceral facilities. It was in the context of this multi-sited rebellion that Mayor John Lindsay acceded to the seemingly outlandish demand that an emergency bail review hearing be held on the grounds of the rebel-controlled jail. On October 3, 1970, while the rebels held hostages on the top floor, a panel of 3 State Supreme Court judges oversaw proceedings in a room adjacent to the warden’s office.

One by one the panel summoned pre-trial detainees that had been nominated by the rebels. Each of them selected Gerald Lefcourt, a young, white member of the Panther’s legal defense team as their legal representation. The result of the hearing was remarkable. Nine captives were immediately released on their own recognizance and an additional four had their bails reduced to $25 each. According to Lefcourt, the supporters amassed outside quickly pooled the $100 needed to post the bails, securing the captives’ immediate release. He calls it the first ever “legal jailbreak.” The eruption of collective illegality compelled the arbiters of law and order to adhere to their own standards. Two days later, as rebels in jails across the city were releasing their hostages, Judge Murtagh reinstated Afeni Shakur’s bail.

A Pyrrhic Victory

A day after the Panthers organized this unprecedented hearing, which forced the judiciary to tacitly admit to its conspiracy to imprison poor people of color through bail, they were back in criminal court, standing trial for allegedly conspiring against the state. The prosecution’s case hinged on testimony from 3 BOSS agents. Before posing as a Panther, Eugene Roberts had successfully infiltrated Malcolm X’s fledgling Organization of Afro-American Unity and had served as Malcolm’s bodyguard on the night of his assassination. Due largely to his military experience, agent Ralph White had swiftly climbed to the position of Section Leader in the Bronx office of the BPP. Carlos Ashwood, also known as Carl Wood, had been serving as an insurance auditor before joining the NYPD and infiltrating the party in the summer of 1968 before many of the defendants did. Collectively, the testimony of these “star witnesses” revealed that the Panthers studied revolutionary tactics, used incendiary rhetoric, and engaged in ongoing preparations for armed self-defense. However, the evidence they presented fell far short of proving that the Panthers planned to carry out the violent bombings and assassinations for which they were accused.

To the contrary, as the trial progressed a picture emerged of an organization riddled with agents provocateurs. “An agent provocateur,” writes Victor Kaledin, a Russian Intelligence expert, “is a police agent who is introduced into any political organization with instructions to foment discontent against a government, or to fake a case in order to give his employers the right to act against the organization in question.” White testified that he had participated in efforts to recruit people into the organization and that he instructed various Panthers in the use of weapons, including methods of constructing time bombs. Roberts testified that he had played a key role in organizing reconnaissance missions on the alleged bombing targets and in one of his reports, described White (who he did not know was also an agent) as the most “militant” of all the Panthers. Ashwood testified that he personally helped construct a bomb with the assistance of an unindicted accomplice, leading one juror to proclaim that “the only corroborated act of insurrection” offered during the entire trial was carried out by a cop.

Finally, on May 13, 1971, the jury, composed of 6 whites, 5 Blacks, and 1 Puerto Rican – 11 men and 1 woman – began their deliberation. Most expected that after a protracted legal struggle that lasted two years, involved more than 60 witnesses, and cost the city more than $2 million, that deliberations would amble on for weeks as well. Instead, the jury reached their verdict over pastrami sandwiches. They re-entered the courtroom 90 minutes later, having unanimously agreed that although the state had constructed a compelling narrative of the Panthers as bloodthirsty terrorists, it had offered little to no evidence proving its claims. Amidst raucous cheers from the audience, the jury foreman uttered “not guilty” 156 times.

Liberal analysts celebrated the acquittal as an illustration of judicial impartiality, yet it is important to recognize that for the Panthers, the outcome of the trial was a Pyrrhic victory. Although they were exculpated in a court of law, the state’s legal attack deprived the organization of some of its most capable leaders, drained it of its financial resources, and forced many of its members into hiding. The Panthers had argued all along that these strategic effects, and not the dispassionate administration of justice, were the primary aim of the prosecution. Moreover, acquittal offered no protection against ongoing extrajudicial surveillance, harassment, repression, and violence. While the Panthers were fighting for their lives in the jails and the courts, the FBI was stoking tensions within the national organization. One result was that in February of 1971 the BPP ruptured into contending factions and BPP co-founder Huey P. Newton expelled the entire Panther 21 from the party. An ecstatic Hoover subsequently informed his field agents that “this dissension coupled with financial difficulties offers an exceptional opportunity to further disrupt, aggravate and possibly ‘neutralize’ this organization through counterintelligence.”

Deploying a commonly used tactic, the FBI constructed a “poison pen letter,” designed to exacerbate strained organizational, political, and interpersonal dynamics. Made to appear as though it was sent from Myra Bennett, with whom Cetewayo Tabor had two children, the letter taunted Newton for allowing “Cet” to flee to Algeria with Connie Mathews, Newton’s personal secretary, who is blithely referred to as “that woman of yours.” Hoover hoped the letter would “cause [Huey] to again strike out at the Panther 21, further causing the rift between him and those sympathetic with NY 21 to be widened, both black and white.”

Although the bureau’s machinations clearly played a role in the debilitation of the BPP, these tactics were effective because they exploited contradictions that existed within the organization. The authoritarian structure of the national hierarchy, the adherence by key members to patriarchal norms of relating to women, and its failure to mobilize effective security and communications protocols, rendered it vulnerable to the FBI’s attacks.

Ten days after the acquittal, Hoover instructed the New York FBI Office to “intensify investigations of [the Panther 21].” Thus, for many of those involved, the grueling ordeal was but an episode within a much longer biography of struggle. The split within the BPP and ongoing state repression birthed the Black Liberation Army (BLA), an underground politico-military formation, heavily populated by veterans of the beleaguered New York chapter. In 1973, Dhoruba bin-Wahad was sentenced to life in prison for the attempted murder of two NYPD officers. After spending 19 years of his life in prison, Dhoruba’s legal team secured his release by proving that the prosecuting attorney knowingly withheld exculpatory evidence from the defense and the jury. In 1974, Sundiata Acoli, another Panther 21 defendant, was sentenced to life in prison for the killing of Werner Foerster the previous year. The shoot-out that claimed the New Jersey State Trooper’s life also resulted in the wounding and capture of Assata Shakur and the killing of Zayd Malik Shakur. Acoli, bin-Wahad, and the Shakurs were members of the BLA.

The United States Government has long maintained that it holds no political prisoners. Yet still today, Sundiata Acoli, at the age of 84 remains behind bars; he was recently hospitalized with Covid-19. BPP veterans Mumia Abu-Jamal and Russell “Maroon” Shoatz have also been in prison for decades and are experiencing severe health challenges. Although Herman Bell and Jalil Muntaqim were recently released from prison, others such as Panther 21 veteran Kuwasi Balagoon were less fortunate. In 1986 Balagoon died in prison due to complications related to HIV. Several Panthers have died in prison, with the most recent victim being Romain “Chip” Fitzgerald, after 51 years in a cage. If the current movement to free David Gilbert – a veteran, white anti-imperialist who was closely associated with the Panthers – does not succeed, he will suffer the same fate. However, efforts to support political prisoners are not calls for the state to show mercy; they are a form of abolitionist care and an essential political praxis that builds knowledge of past struggle while showing future generations that those who fight for liberation will not be forgotten.

During a recent conversation about these events, Dhoruba bin-Wahad told me that “these kids struggling today don’t have to reinvent failure. When they say they want to empty the jail and dismantle the Prison Industrial Complex, they need to go back to the struggles of the people who actually did that.” One of the key lessons to be learned from this history is that revolution is illegal. Revolution is criminalized because it necessarily entails destroying law. Understanding this means that contemporary activists cannot expect a government that facilitates the coercive dispossession of economically impoverished communities of color across the nation and the world to facilitate, legitimate, and reward radical struggles to transform, undermine, and abolish the state as it is currently constituted. The Panthers paid and continue to pay a high price for the militant forms of struggle in which they engaged. They made several mistakes and miscalculations. However, many of them want us to understand that their sacrifices were worth it, if only to set an example for future generations.