Saturday, September 29, 2007

Prosecutorial Indiscretion

Stopped by Friends of Justice today to see if there is any news, and there I find a response from the Southern Poverty Law Center to Reed Walters' NYT op-ed piece (which was mentioned here earlier):

Walters states that the United States attorney "found no federal law against what was done." In actuality, the federal prosecutor told CNN that "the FBI believed that [the case had] the elements of a hate crime." But because of the boys' ages and backgrounds, he declined to bring charges that could have put them away for 10 years. This is prosecutorial discretion in action.

Walters also had discretion to prosecute the noose-hangers in state court. He claims that the noose incident "broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none." But, it just ain't so.

Louisiana Revised Statute 14:107.2 creates a hate crime for any institutional vandalism or criminal trespass motivated by race. Walters was creative enough to turn a schoolyard assault into an attempted murder case; he surely could have figured out how to make nooses into hate crimes.

But — and this is a crucial point — Walters and the Justice Department were right not to prosecute the noose-hangers. Prison terms for them would not have served Jena as well as a thoughtful, measured response that addressed the deep community concerns triggered by the nooses.

Unfortunately, that never happened. Instead, Walters and the school system tried to stifle debate. Black parents were ignored at school board meetings. After black students staged a sit-in under the contested tree, Walters came to the school and, according to numerous witnesses, ominously told the student body that if they did not settle down, "I can end your life with the stroke of my pen."

Reed Walters knows prosecutorial discretion.

Things did settle down somewhat, until an arsonist burned down much of Jena High on November 30, 2006. What happened the next day perfectly illustrates the racial disparity in Walters' decision-making.

On December 1, a black student, Robert Bailey, was attacked by a group of whites, beaten to the ground, and apparently hit with a beer bottle. He suffered a gash to his head.

Walters could have prosecuted the group of whites with felony charges that might have put them away for years, just as he is now prosecuting the Jena Six. Instead, Walters charged one white with a misdemeanor; that person served no prison time. The others walked.

FOJ also discusses a column by journalist Ruben Navarette, in which Navarette calls the Reverends Sharpton and Jackson "perennial grievance merchants" (now, really, was that necessary? My response to that is well, perhaps if there were no grievances, they would occupy themselves with other diversions, maybe take up needlepoint or knitting or backgammon--not that I am the great defender of the Reverends, but who can say that their involvement has been an unmitigated evil) and echoes Reed Walters in claiming victim rights for Justin Barker while professing bewilderment that Mychal Bell could be considered a victim.

Hold up there. If Navarette can say that Mychal Bell has not been victimized in this matter, Navarette has never, to his great good fortune, been in jail. To be imprisoned at all is a terrible experience, more terrible really than you can imagine. There is no comfort. Everything that you hold onto for your identity (except what you carry in your mind) is taken away from you. Prisoners have no rights. None. They have no freedom and no privacy. If they are not actually under constant threat, they certainly feel as if they are. Mychal Bell is only 17, and yet was housed with adult offenders for 9 months. His attorneys worked for his release, and, failing that, for moving him to a juvenile facility, but neither happened. Juvenile facilities are no picnic, either, but at least he would have been with inmates his own age and would have continued attending school. Keeping Mychal Bell in jail with adult offenders was wrong--it was an injustice, and anyone who has ever been in jail (in whatever capacity--I used to spend a lot of time in jail as a part of my work) understands how Mychal Bell must have suffered from this experience.

P.S. Navarette also gets his pants all in a twist because he, like Richard Thompson Ford, is also handicapped with a literal mind and is therefore incapable of interpreting symbols (here, baby, have a metaphor):

Students at Morehouse and Spellman – traditionally black colleges in Atlanta – held a rally and declared an affinity with the defendants. Some held up signs saying: “I am the Jena 6.”

Well, not if you've never been part of a mob-style beating you're not. Those college students obviously made good decisions to get where they are. The Jena 6 made a bad decision, and that's why they are in trouble with the law.

His breathtaking capacity for misunderstanding the symbolic language of the protesters (maybe he would understand a literal sign that read "Black defendants are treating unjustly in the courts and because I am a young Black person, I, too, could be treated as unjustly as Mychal Bell and the others of the Jena 6 if I were arrested for a criminal offense, and certainly I would probably receive sentencing more harsh than would a young white person arrested for a similar offense" but come on, that's an awful lot to fit onto a poster board) notwithstanding, Navarette also fails to understand that context is crucial. Which is why the law provides for mitigating and aggravating circumstances.

But really, I'm making one of the same mistakes Navarette does, by sifting through this level of detail and by acceding to his assumption that the Jena 6 are all guilty, because this has not yet been proven in a court of law. (And also? Is everyone aware that Mychal Bell's court-appointed defense attorney, Blane Williams, did not call any witnesses nor present evidence to defend his client?) If it is, then the Jena 6 defendants should receive sentences proportionate to the crime of which they have been convicted, sentences that are the same as white defendants would receive in a similar case.

P.P.S. I'm with the commenter at Too Sense, who fails to understand "the bug up everyone's ass over Jackson." It just seems like spin to me. One side can be as flamboyant and self-indulgent in their hyperbole and rhetoric as they wanna be, yet then accuse the other. Pot, kettle, pot, kettle, pot, kettle. And glass houses. Sure, it would probably be better if we all spoke reasonably in measured tones and used only the most objective, decorous, inoffensive language. But emotions have a way of heating up the words. So what. Maybe Jackson does run the risk of crying wolf too often? But that doesn't mean that there are no wolves.

No comments: