A tale of two criminal law systems

Irina Baranova

In my experience, there are three broad reasons why people choose to subject themselves to the expensive hazing ritual more commonly known as law school: 1) those who have no idea what they want to be when they grow up but figure lawyers are generally well-respected and make a lot of money so why not; 2) those who believe the United States has created the most amazing legal system in the history of history and want to become its dutiful officers; and 3) those who see it for all of its inherent flaws and need the tools to fix it or dismantle it altogether. For those of you who follow me (and perhaps more so for those who hate follow me) it will come as no surprise that I fall squarely in that third bucket. But even I had no idea just how deeply damaging, cruel, and unjust the entire scheme is. More importantly, I had no real perspective to understand that the damage, cruelty, and injustice aren’t flaws, they are by design. In plain terms, the system isn’t broken, it’s working precisely as it was always meant to; its overarching mission to uphold the patriarchy, to uphold wealth, and foremost (because this is ‘Murica we’re talking about) to uphold white supremacy.

Don’t believe me? Well, luckily the past few weeks (the past few years, and the entirety of American history really) have gifted us with countless examples of what I mean. Let’s review just a few.

Most recently we have the circus that was the Kyle Rittenhouse trial. For those of you hiding under a rock, Kyle is the then 17-year-old vigilante teenager who was oh so concerned with protecting the property of someone he had never even met that he took it upon himself to arrive at a protest – significantly, a protest condemning yet another police shooting of a Black man, 29-year-old Jacob Blake – fully armed with a semiautomatic rifle. By the end of the night he had killed two men and seriously injured another. He went looking for trouble, started some trouble, shot that trouble down, and last week he was predictably acquitted of any wrongdoing by a jury of his nearly all white peers. I won’t get into whether it was a legally sound decision because I wasn’t there and I didn’t watch it but more importantly, because it may very well have been legally correct, and that is my point. The system worked out for Kyle because it was never not going to. The system was made for Kyle. 

There are two other young men that immediately came to my mind when the verdict was announced; two young men who did not fare as well as little murderous Kyle. The first was another 17-year-old, Trayvon Martin, who would today be 26 had he not been shot to death by another vigilante who was so threatened by the presence of an unarmed Black boy in his neighborhood that he stalked him as he walked home from getting candy and then executed him when the child had the audacity to attempt to protect himself from the fully grown stranger following him in his car. That murderer, just like murderer Kyle, argued that he had acted in self-defense. That murderer was acquitted too.

The other young man I am thinking about this week is Jorge Gomez. Like Kyle, then 25-year-old Jorge also armed himself to attend a Black Lives Matter protest, this one right here on the Las Vegas Strip on June 1st, 2020. Unlike Kyle, Jorge was legally armed and legally exercising both his First and Second Amendment rights. Unlike Kyle, Jorge wasn’t white, he didn’t kill anyone, or instigate any trouble. In fact, there is no evidence that Jorge ever even lifted his weapon. But, also unlike Kyle, Jorge didn’t make it out alive. Four LVMPD officers took care of that. 

Hmmm, what was so different about Kyle and Jorge? Or about Kyle and Trayvon? I wonder…

But they are not the only ones that the criminal law system has failed. The same self-defense laws that protected murderer Kyle and Trayvon’s murderer somehow and for some reason (hmmmm) don’t seem to apply to Black and Brown women legitimately protecting themselves from their abusers. There’s Marissa Alexander, a Black women who was sentenced in a Florida court to 20 years in prison for firing warning shots to ward off her abusive husband. That’s right, she didn’t hurt or kill anyone and never intended to. Still, she got 20 years. Then there’s Cyntoia Brown who served 15 years for killing a 43-year-old man who picked her up from the streets of Nashville to have sex with her when she was just 16. Cyntoia always maintained that she acted in self-defense but her pleas fell on deaf ears and she was sentenced to life in prison. At 16. For the death of a man who either raped or intended to rape her that night. Because, the age of consent in Tennessee is 18 and there is no universe in which sex between a middle-aged man and a child is consensual. Spare me any disgusting analysis to the contrary. Like Cyntoia, Chrystul Kizer is another young woman currently awaiting trial in Wisconsin for killing her adult abuser, a known pedophile in an act of self-defense. It remains to be seen if Chrsytul’s right to defend herself will carry the same weight as murderer Kyle’s but Chrystul is Black so my guess is it will be a much steeper hill for her to climb. 

There are countless more examples of the double standard built into the criminal law system which unsurprisingly don’t stop at race. There’s also an almost constant reminder of the impunity with which white men are allowed to rape or otherwise assault women. I’m thinking of course of Brock Turner, who in 2016 was sentenced to only 6 months in prison for raping an unconscious fellow Stanford student in the street, with all the audacity that his blond hair and blue eyes afforded him. More recently, (as in last week) another young white man was sentenced to just probation after pleading guilty to raping at least 4 underaged girls in his home. The judge there simply didn’t feel incarceration was “appropriate” under the circumstances. And who can forget the case that introduced the world to the little known condition known as “affluenza” – whereby a person is so privileged that they are unable to understand the consequences of their horrible actions. Poor babies. In that case, the white defendant did receive prison time. He served two years for killing 4 people. Justice served, I guess. 

All this to say, there seem to be two very different criminal law systems at work in this country: the one that lives in our fantasies, a beacon of truth and justice, and the one that we actually got, which is anything but.  These few cases I’ve highlighted are not anomalies, they are but the tip of the iceberg. There are of course those for whom the system will always work, those for whom it was built to work, the Kyle Rittenhouses of the world if you will. But for most of us, Black, Indigenous, people of color, women, and the poor it’s a whole other universe. One that most people would rather not see. And then you all wonder why we are angry, why we protest, why we demand to be heard. I mean, what would you do? 

Martha E. Menendez lives in Nevada and is the legal manager for Justice in Motion, a NY-based organization.

https://thenevadaindependent.com/article/a-tale-of-two-criminal-law-systems

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