America’s broken justice system

by Will Bunch

You’ve probably heard the old political maxim, most popular in the crime-ridden 1970s, that a conservative is a liberal who’s been mugged. In the 2020s, it turns out that a criminal justice reformer is now a white dude who suddenly finds himself in jail after taking part in an insurrection to keep Donald Trump in the White House.

Right-wingers busted for taking part in the Jan. 6 riot at the U.S. Capitol — raised in their movement’s “tough on crime” agenda — are now shocked, shocked to learn about conditions in the District of Columbia jail where about 40 of the worst offenders are awaiting trial and complaining about everything from harsh treatment by guards to standing sewage and putrid food. Allies in the Trumpist movement claim this must be political retribution from big-city liberals. Extremist GOP Rep. Marjorie Taylor Greene of Georgia compared them to “prisoners of war.”

But the complaints are almost comical to D.C.-based activists who’ve been railing against these wretched conditions in their majority-Black city for years, only to have their pleas ignored. Even Washington’s attorney general had to concede that the publicity was only because of these new white inmates, that “recent reports about squalid conditions in the district jails are unfortunately not new.”

The D.C. jail situation feels like a metaphor for a much bigger American phenomenon as 2021 nears an end.

After Trump and the George Floyd protests, Americans are apprehensively looking for justice — and not liking what they are seeing so far. TV viewers this month have been riveted by the trials of the right-wing vigilante Kyle Rittenhouse and the three men who killed Black jogger Ahmaud Arbery, and frequently appalled by what’s on their screen.

In the Georgia trial of the three white men who confronted Arbery with their unfounded belief he was a burglar and shot and killed him in the ensuing confrontation, the selection of a jury with 11 white members and just one African American (in a 27% Black county) and a defense lawyer’s stunning comment that he didn’t want “Black pastors” as spectators has made folks understandably question how far justice has really advanced in the American South.

But the biggest flashpoint so far has been the Kenosha judge, Bruce Schroeder, who is presiding over the homicide trial of Rittenhouse. He’s the white Illinois teenager who crossed state lines with an AR-15-style rifle on a vigilante mission during August 2020 racial unrest and ended up killing two men and wounding a third.

TV viewers closely following live coverage of the trial on cable news are seeing how the Wisconsin bratwurst, if you will, of American justice is made as they watch the mercurial and often imperious Schroeder — a 37-year veteran of the bench. His conduct has been weird or even appalling at times — from a cringe-invoking Asian food “joke” to asking the courtroom to applaud on Veterans Day for a vet who was also a defense witness — but also seemingly skewed toward Rittenhouse’s defense of armed vigilantism.

From preventing lawyers from calling the men gunned down by the teen as “victims” to blocking prosecutors from bringing up Rittenhouse’s past, including an association with the violent Proud Boys, and also snapping “Don’t get brazen at me!” at them, Schroeder’s conduct has done nothing to reduce fears that this Kenosha trial will put a green stamp of approval on political violence just as it becomes a key tactic of the right.

But ponder this: This is how Schroeder acts when the eyes of the entire nation are thrust upon him! Imagine how justice operates in his courtroom when nobody is looking. One fairly powerless woman — a 28-year-old Milwaukeean named Markea Brown, convicted of retail theft from a mall — found that out when she was sentenced in 2018 by Schroeder to 15 months followed by two years of supervised release in which she’d be required to tell store managers about her criminal record in order to shop. The judge insisted “embarrassment does have a valuable place in deterring criminality,” but the Wisconsin Court of Appeals struck back and tossed that provision out, noting that public shaming isn’t supposed to be part of the U.S. justice system.

The American audience is getting a front-row seat to a warped justice system that is wired in so many different ways, large and small, to favor those in society with wealth or with white privilege, and to punish those — like a Milwaukee shoplifter — who are not.

And in many ways, the ongoing Jan. 6 investigation is where the rubber hits the road. The defendants’ pushback on awful jail conditions that none of them would have dared protest for the majority-Black population is just one sign that these white accused criminals are expecting different treatment. What’s so alarming is the very real possibility they will get what they want.

In the sentencing of the mostly smaller fish who’ve pleaded guilty so far, the punishments for participating in an insurrection against the United States government have tended to be much more lenient than for a shoplifter in Kenosha, or a black woman who mistakenly tried (unsuccessfully) to vote, also while on supervision.

The public anxiety over the trials of Rittenhouse and Arbery’s killers isn’t just over the immediate prospects for injustice but also that the precedent of sanctioned political or racial violence will spread, pandemic-like, to the Jan. 6 aftermath and then to the ultimate terror — that America is lurching toward a next presidential election in which one side will see violence as a legitimate tool for gaining power. And we are seeing nothing in America’s rusted-out and badly bent system of justice that suggests any serious willpower to stop them.

Will Bunch is national columnist for the Philadelphia Inquirer.