By Robert Barton
In my West Virginia penitentiary, I am allowed to receive a subscription to USA Today, although there are days when it is randomly held back for no apparent reason. I read with disgust that President Trump has once again thumbed his nose at the rule of law. As he uses his last few days in office to pardon war criminals, white-collar offenders of influence and cronies (and to rush to execute people like the emotionally abused Lisa Montgomery), I am once again reminded that in America, there are two, separate and unequal justice systems: the criminal justice system (for people of color, low incomes, etc.) and the just-us system (for people of means and influence).
A Palestinian-American named Amer Zahr resorted to black humor to comment on the stark disparity that was so obvious in the initial response to the Trump-inspired insurrection in the capital:
I watched the events of last week, as Trump supporters, who happen to be overwhelmingly white, like almost of them, stormed the United States Capitol.
And all I could think was, “Man, protesting while white looks amazing.”
I’ve been to hundreds of protests. I’ve organized dozens of them. But yesterday, I didn’t see any of the normal protest markers I’m used to. No riot gear, no batons, no tear gas. I mean, some of that stuff came later. But if I understand the concept of riot gear correctly, it’s supposed to make an appearance before the riots, not after.
We all know what this is about. This is about the quickly approaching brownification of America. A lot of white people are freaking out. And maybe you can’t blame them. For centuries, this nation has been built on the notion that Americanness and whiteness are one in the same. It’s not some abstract concept. From 1790, the birth of the nation, until 1952, not that long ago, whiteness was a legal prerequisite for citizenship. As Toni Morrison told us, “In this country American means white. Everybody else has to hyphenate.”
Our vaunted justice system is supposed to be free of this taint, right? The word conjures a promise of “righteousness” and “morality.” But if our criminal justice system is built on these values, then why are there such inequitable disparities between the status and treatment of classes and races? Is there justice in the fact that Black Americans make up 12% of the country’s population but over 30% of the people incarcerated?
Is there justice in the 18:1 ratio that continues to exist between the sentences meted out for a person who sells crack cocaine (a drug mostly sold by Blacks) vs. cocaine? Until 2010, that ratio was 100:1 — and yet so many people (mostly Black men) who were imprisoned under the older, more draconian law still remain behind bars.
Why are people of means and influence so often allowed to go free while awaiting trial, while poor people who can’t afford bail are forced to sit in jail for months at a time — losing jobs, relationships and other opportunities — until they finally agree to a deal in which they plead guilty in exchange for their release?
Why is my friend Donzell McCauley serving life without parole for killing a police officer (who pulled his gun first while out of uniform), while police officers who kill unarmed Blacks like George Floyd and Tamir Rice are rarely charged or convicted, much less serve any real time in prison.
And while we’re at it, what is the difference between a government official who knowingly orders American troops to launch military strikes that kill multiple innocents and a person who commits a drive-by shooting in the inner city? Why are they not both considered killers?
Are these examples of justice or just-us?
Anthony Ray Hinton was sentenced to the death penalty and incarcerated for 30 years before long-standing evidence of his innocence finally resulted in his release. In his book “The Sun Does Shine,” he writes this after winning his freedom: “The truth is, my life was stolen away and my children were kidnapped before they had a chance to be born. You can’t measure what the state of Alabama stole from me in years or even decades; it can only be measured in generations. I wasn’t put to death, but the potential of my children, grandchildren and the entire legacy of my existence was killed on death row.”
Hinton had taken a polygraph test shortly after being arrested, and the results showed he was telling the truth. Yet the government still fought tooth and nail to keep him in prison, despite clear evidence they had convicted the wrong man. Once he was finally proven innocent, government officials still didn’t admit they were wrong, much less apologize. Where is the justice in that? Martin Luther King Jr. once stated that “the moral arc of the universe is long, but it bends toward justice.” Well, it needs to hurry up and bend, because our criminal justice system needs to change now.
People who have been wrongfully convicted or otherwise treated unfairly by our injustice system often say that “justice was finally done.” I understand being overwhelmingly grateful and ready to get on with their lives, but it’s wrong to say that justice was delivered. We do a disservice to the people left behind in prison, innocent or serving disproportionate sentences, when we overlook that and move on. Hinton writes that he forgives everyone who played a role in his conviction, because to not do so “would only hurt me.” I understand that; continuing hate and anger are corrosive and destructive. You’ll never be truly free as long as they eat at you. But forgiving must not mean we forget. And not speaking out against injustice is, to me, a form of forgetting.
In an interview with my brother Pete Petty, just released from prison after 30 years, he said he knows he now must trust in the law to protect and do right by him. I know I will need to do the same when I am released, leaving behind the “law of the jungle” I knew on the streets and must live by in prison.
Freedom after 30 years: first impressions and reflections
For Anthony “Pete” Petty, 2020 is both the best and worst year
But as a Black man, it takes a real leap of faith to trust the criminal justice system in America. In a country of laws, there should be equitable penalties for all who do wrong. When the penalties are not the same across classes and races, we no longer have a justice system. We have a just-us system.