The Hierarchy of Lawlessness
Let’s play a depressing game. Consider these stories, and spot as many cases of lawlessness as you can:
- As I wrote about a couple of days ago, a Philadelphia mob attacked and severely beat a rape suspect. The actions were condoned, encouraged, and rewarded by city officials. In this piece, Columbia University Professor Marc Lamont Hill attempts to justify the mob’s actions by noting that black women can’t count on the criminal justice system to vindicate their interests.1
- In the wake of the killing of Dr. George Tiller, who ran one of only three late-term abortion clinics in the country (now two, as his clinic is closing), Dr. Susan Hill, a friend of the late Dr. Tiller’s and President of the National Women’s Health Foundation, appears on the Rachel Maddow show and says that the police often do not protect women who seek late-term abortions when they are harassed by anti-choice nuts. Apparently, the Freedom of Access to Clinics Entrances Act (”FACE”), the federal statute that allows both the U.S. Attorney General and any aggrieved person to sue for acts of violence or intimidation, isn’t doing enough to stem this misplaced zealotry, either. Dr. Hill also states that the level of violence and intimidation has spiked since Dr. Tiller’s death, but also notes that federal marshals are on the ground to safeguard women’s safety. (The linked video is worth your time.)
- This compelling story from the latest ABA Journal: In 1909, a black man is convicted of raping a white woman despite overwhelming evidence of his innocence. (Stop me if you’ve heard this before.) The judge essentially orders the convicted man’s attorneys not to appeal his death sentence. Other attorneys do step in and appeal, eventually filing a petition for habeas corpus in federal court, challenging the detention on constitutional grounds (including the right to a fair trial). The petition is denied in the lower court, but the court also stays the defendant’s execution pending appeal. When Supreme Court Justice John Harlan allows the appeal, an angry mob — enabled by the local sheriff — lynches the poor man, and shoots him “just in case.” The Supremes then host their one and only (still!) criminal trial, eventually finding the sheriff, a deputy, and several mob members guilty of contempt of court. All are sentenced to (ridiculously brief) jail time, but are greeted as conquering heroes upon their return to their home town of Chattanooga, Tennessee. Meanwhile, the black lawyers who took the appeal, fearing for their lives, are forced to relocate.
- The U.S. Government tortures enemy combatants, then protects those who ordered the torture. Congress attempts to strip the detainees of their habeas corpus rights, but the U.S. Supreme Court, in Boumediene v. Bush, strikes down the law, finding that the procedures in place to challenge their detention were insufficient as a matter of due process.
Lawlessness isn’t limited to angry mobs. But such vigilantes are emboldened, and given example and cover, when those charged with enforcing the law — from renegade juries, prosecutors and law-enforcement officials to elected officials, to judges who forget their role in the constitutional design, to legislators who pass laws they should know are unconstitutional — fail to do their jobs.
The above stories suggest a scary lattice of lawlessness. Violent anti-abortion protesters who aren’t arrested and prosecuted for breaking the law encourage others, equally or more violent. The stranglehold of Jim Crow racism was almost impossible to break given the lawlessness of public officials; it took the Supreme Court to create (admittedly crummy) accountability. The Philadelphia mob will spawn others, because the message from the city is clear: “We’ll look the other way.” And only the Supreme Court, by the narrowest of 5-4 margins, stood between Congress and the further erosion of our Constitution when it comes to our treatment of detainees.
Maybe it’s the pervasiveness of this outlaw mentality that explains Marc Lamont Hill’s attempt at justifying the mob’s actions last week. Here’s what he had to say:
“I…have no antipathy toward the ghetto kangaroo court that sentenced him to a thorough ass-whooping. Still, I remain wary of hasty rushes to judgment (and punishment) regardless of the circumstance. After all, it was the ostensible need to quickly avenge rape that led to the physical and juridical lynching of thousands of black men throughout history. Also, if the racial tables were turned, we would surely disapprove of a white mob beating a possible black rapist. Black and white, however, are not two sides of the same racial coin.”
Hill then goes on to cite compelling historical and sociological evidence of the law’s failure to regard the black female body as worthy of protection. He then concludes:
“In a perfect world, law enforcement would be enough. Unfortunately, we live in a world so fractured by racism and sexism that black female bodies are still rendered unimportant. On Tuesday, the neighbors decided to send a different message. Until the broader society gets it, the community’s brand of justice is both appropriate and necessary.”
There’s so much wrong with this argument that I hardly know where to start. First, even if (as we must concede) the criminal justice system is flawed, that does not mean that the mob justice he champions is better. The mob had already attacked the wrong guy before they fingered this one. Is it OK if they’re wrong? If not, how does he know that the guy they did beat is the right one? Because the very police he doesn’t trust said so? And how far would he let the mob go? This alleged rapist was hospitalized. What if he’d died? Would that have been OK, assuming the same level of force was used?
None of these pedestrian concerns appear to have occurred to Hill, who practices being provocative on FOX News. Nor does he appear to have thought through the implications of excusing criminal behavior based on the race of the parties involved. Saying that “black and white are not two sides of the same racial coin” is sound-bite ready, but what does it mean? More to the point, what might that statement justify? Lawlessness isn’t so easily cabined, once unleashed and condoned. He’s “wary” of this kind of behavior? So what?
Batman is pretty cool as a comic book character (although I always preferred the less complicated Superman as a kid), but a nation of lawless zealots who “know best” and their academic and official enablers is less appealing.
- h/t Kris Kachline for alerting me to this article. ↩
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