Standing Rock is about sovereignty and the rule of law
In America a system can kill and no one can be found accountable
Once upon a time, it was generally held that the Nuremberg defense – that you were merely following orders – was inadequate. Today, the question of a system’s failings and how that system’s members can avoid responsibility seems to be answered with Alfred E Neuman defense: “I was oblivious”. Ignorance of the consequences of your actions is apparently sufficient.
The charges were: second-degree depraved-heart murder, second-degree assault, manslaughter, reckless endangerment, and misconduct. I personally thought that the depraved-heart murder charge was never going to fly, but how can reckless endangerment not stick? A man goes into a van under the protective custody of the police and comes out with a severed spine. The particulars of the case are even worse: Gray is loaded into a van without breaking any laws, is injured at some point, and eventually is rendered comatose.
The full decision is here and I’m pretty disappointed: “Seemingly, the State wants this Court to simply
assume that because Mr. Gray was injured, and the
defendant failed to seat belt him after stop 2, allegedly
ran a stop sign, and made a wide right turn, that the
Defendant intentionally gave Mr. Gray a rough ride. As
the trier of fact, the Court cannot simply let things
speak for themselves.” The judge then proceeds to lay out that hey, no one actually checked this guy asking for a hospital well enough to know he was injured and then he ended up dead, and everybody thought it was okay to not have a seat belt on him despite, you know, asking for a hospital after being found on the damn floor of the van, and even if they did check him he went from okay to literally shifting himself, and all of that is okay because no one at any time actually put any effort into checking on Gray.
That’s literally the reasoning: no one did a damn thing to actually figure out if any of this was okay, so it was okay. Ignorance is not just bliss, it’s also apparently a good defense if you’re a police department who arrests an innocent man and kills him while he’s in your custody. No one could’ve known Gray was injured, no one really needed to belt him in, no one could’ve known he was going to die, and nothing proved the rough ride occurred.
Law is not justice. I get that. And the prosecution indeed didn’t prove that it was a rough ride that killed Freddie Gray rather than a freak accident. But the circumstances around Freddie Gray’s death seem, like so many things as of late, to have no one held accountable. We live in an era where “mistakes were made” is more and more an unassailable defense for the privileged. Banks can defraud, but no person is charged. A war can be started, but no one was held to be at fault. A man can die after being rounded up by the cops, and no one is responsible.
Trust of institutions in America are at an all-time low, and this is why. No one is ever at fault, it seems.
Justice is not law, law is not justice
In some small way I feel like the Supreme Court attempted to answer that in Utah v. Strieff. I think there are valuable lessons in it to consider, not only as regards justice and law but also the nature of the Supreme Court.
It’s no secret why Clarence Thomas wrote the majority opinion: this is a judgment with another chiseling away of rights largely hitting minority communities, and so having him write it offers some legitimacy. Thomas and Sotomayor each had something to share, and it’s an illustrative glimpse at the very plastic concept of justice.
For Thomas (and the majority), this was a technical and procedural question. What should police do? How should they do it? What complications arise, and how do they see them through? It’s a very minutiae-driven analysis about technical aspects of law.
For Sotomayor, justice is not a matter of attempting to tighten the not-quite-snug gears of process. Justice is a matter of aggregates, and the measures of the real world. By her measure (and those of the minority), justice is what is, not what ought to be.
There are advantages to either outlook: technical judgments provide clarity but don’t heavily consider downstream effects, whereas holistic measures avoid things like “separate but equal” but provide only fuzzy guidance for future issues.
Here I’d side with Sotomayor, but it isn’t like I don’t see the merit in what the majority is trying to do. This is why you want a diverse Supreme Court: there isn’t one way to look at these things and there often isn’t one measure of law or justice. There’s an art to all this and that art will necessarily be myopic and damaging if the Court is homogeneous.
We’re fascinated by all the wrong things and it’s literally killing us.
It’s no great secret that the American police have become more militarized: they have bigger weapons and trucks, the use of SWAT teams is way up, and the ongoing use of what constitutes proper application of state-sanctioned violence in enforcement of the law is a key component of the cultural struggle between the Black Lives Matter movement and the law-and-order backlash against that movement.
In fact, crime has been falling steadily for decades, with a recent small uptick in violent crime (fuel for the struggle noted above). Yet here we are, with a decade+ of fears of terrorism managing to worm their way into America’s law enforcement management and execution. There haven’t really been any major devastating terror attacks in America since 9/11; the Boston bombing was the most spectacular, but even that couldn’t compare to a hundredth the destruction of 9/11.
It seems that police killings, on the other hand, are up, and steadily, slowly rising.
So at the least, it’s pretty clear that the fear we’ve constructed out of fear is turning on ourselves. Still, the police killed around a thousand people last year, it’s safe to assume at least some of those shootings were actually justified (rather than “police justified”, which is the kind of standard that’s applied legally and the reason that it’s so rare for murder charges to be brought against police), putting the number of unjustified shootings, at worst, in the realm of some few hundreds in what are probably a million police encounters in a year.
Dead innocents are tragic, but let’s stay focused on the militarization of police and the threat of a police state.
What can we say about all this?
Well, the police are clearly over-armed. They don’t need dozens of rifles for police work unless they’re putting down some kind of insurrection. They’re overly aggressive, given what we know about the frequency of police killings. And their uses of force fall disproportionately on minorities (though not quite as much as some may have you believe: it’s a real data artifact all the same). And yet? This is, in the end a thousand times less deaths and destructive a presence than, say, medical errors, themselves products of a medical system that doesn’t manage to even attempt care on a significant minority of our population.
The NSA is meanwhile reading your emails illegally but pointing that out gets you a decade in prison, the TSA is afraid of liquids and will gently pat your genitals and throw you in prison for noncompliance despite a 95% failure rate, and the FBI can’t find terrorists so it makes them up.
I’m not terribly sure why people are fascinated with these high profile things when accidentally being killed by your doctor is more likely, but one is treated as a statistical anomaly and the others the foundation for a massive police state.
He’s a rapist. Raping rapist. Dennis Hastert: rapist.
It’s not a big secret anymore that Dennis Hastert is a dirty old man and a coercive rapist and pedophile: pretty much everyone is covering it. What’s sort of news is that we’re not collectively flipping tables over it and just sort of shrugging “LOL those old white guys amirite”. North Carolina’s GOP is more exercised by protecting bathrooms from non-existent predation when apparently it’s more likely their own party members are going to try to rape people under their care. They should be writing laws to prevent themselves from being left alone with kids.
In (marginally more) seriousness, the BBC was rocked by stories of a “Sex Monster” within recent memory, and it’s no great stretch to say that particular scandal involved more higher-ups than it should’ve in any functionally moral society. So… this isn’t exactly unique, in that a (very) influential man high up used his influence to coerce and rape younger folks.
What’s a little more intriguing is that folks are more excited and fearful of the monsters within their midst, but are projecting that fear onto the unknown (such as the transgendered) rather than, say, the old guy with lots of money and friends that runs their town. The fact is that The Other is a convenient foe when you need to whip up the base, and that will ever be true.
In the end, folks will always be more afraid of The Other than someone they know, when it is significantly more likely that The Other is just some marginalized political group convenient to project cultural fears onto, whereas the person you know is actually more likely to be the rapist and pedophile.
Not only that, but ol’ Dennis was caught for trying to move money around, not because he was pinned to a wall by some wronged adult for crimes in the past. Our laws about sexual assault, being what they are, are much more amorphous and difficult to work with than proving that someone tried to bribe you with undeclared money. We live in a society where we haven’t found out a better way to get to the root of these nasty issues without seeing money fly around.
This isn’t a new phenomena: capitalism and liberalism’s obsession with the proper movement of money is the foundation of justice for the otherwise overlooked. Al Capone was caught for tax evasion. Dennis Hastert was caught for moving undeclared cash around. It’s just easier in our legal society to find weird money movements than it is to pursue justice, and that’s just where we live.