American democracy did not die today with the Senate’s shameful vote. For a democracy to die it must have first lived.
Democracy is nowhere to be found in the multi billion dollar purchase of an Imperial Presidency, or in a legislature of and for millionaires, or in an increasingly politicized judiciary with lifetime appointments. And, critically, there is also little democracy in the justice dispensed throughout the country’s courts. What happened in the Senate today is typical of the dual system of justice found in most American courtrooms. It was a tradition, not an aberration.
Slavery, genocide, and the subversion of democratic elections in other countries have been a steady feature of American “democracy.” Creating a society of equals with equal opportunity and equal representation has never been the object, as Jim Crow, voter suppression, mass-incarceration, censorship, and ever-new variations of McCarthyism attest. Denials of civil liberties and human rights to asylum seekers and immigrants, even after they reach our borders, are the result of growing nativism and xenophobia.
What we believe in is power, not justice. The pursuit of power, and the preservation of it at any cost, gave birth to a deformed — if not stillborn — democracy. Today we find these deformations most starkly in our judicial system, and there have been many examples in my own lifetime.
In 1955, Emmett Till was visiting relatives in Money, Mississippi, when he was lynched and his body discovered three days later in the Tallahatchie River. The identities of his killers and the ringleaders of his lynching were never in doubt. Roy Bryant and J.W. Millam were arrested. But an all-white jury found them not guilty.
In 1963 Medgar Evers was murdered in his driveway by Byron De La Beckwith, a member of the White Citizens Council in Jackson, Mississippi. In 1964 an all-white jury somehow could not reach a verdict. It took thirty years of fighting by Evers’ family, and finally his exhumation for additional evidence, to reopen the case against De La Beckwith.
In 1964 Ku Klux Klan “Kleagle” Edgar Ray Killen participated in the murders of civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner. When Killen was finally arrested, an all-white jury refused to convict a “preacher.” Twenty years later Killen was again charged with murder, but a mostly-white jury again refused to hold him directly accountable for the murders, instead convicting him on lesser conspiracy charges.
The American military slaughtered up to two million Vietnamese and left behind birth defects from Agent Orange and bodies ripped apart by land mines long after the U.S. beat a hasty retreat from Saigon. But it was the My Lai massacre in 1968 that shamed an American justice system that failed to prosecute it and government officials who covered it up. Hundreds of civilians — the US said 347, the Vietnamese government counted 504 — were raped, bayoneted, and shot execution-style, including children, their bodies left in ditches. Only one platoon member was ever convicted. William Calley was sentenced to just three years of prison, but Richard Nixon commuted it to house arrest. Then the matter was quietly dropped. But impunity for war crimes goes back to the nation’s founding.
Tens of thousands of black people were lynched from Reconstruction through Jim Crow, and one would have thought this gruesome chapter of our history was over. But it doesn’t take much to revert to barbarism in this country. A case in point was the lynchings of African Americans during Hurricane Katrina in 2005. In 2019 The Nation and ProPublica reported on a significant number of unsolved homicides of black people in Algiers Point and elsewhere, and of the emergence of white supremacist militias that had organized the killings. After the articles were published, New Orleans Police Superintendent Warren Riley said he’d “look into” it.
Many Americans still remember the name Trayvon Martin, an unarmed black teenager who in 2012 was shot after punching George Zimmerman, a vigilante who had been harrassing and following him. Zimmerman’s lawyers planned to defend their client on the basis of so-called “stand your ground” laws and the case received national press. Alan Dershowitz — always found playing with matches at the scene of a fire — attacked Florida’s State Attorney Angela Corey for even daring to prosecute Zimmerman. In the end a Florida jury let Zimmerman walk.
In 2013, when rich white boy Ethan Couch crammed seven of his friends into his hot red pickup truck and totaled it killing four of them, Couch’s defense lawyer claimed he was a victim of “affluenza” — a word the lawyer invented to describe the coddled teen’s irresponsibility resulting from his family wealth. Even though Couch had a blood alcohol level three times the legal limit and had killed four people, the defense strategy worked. Couch was released on probation — until he fled to Mexico with his mommy.
And who will forget former Ferguson police officer Darren Wilson, who murdered Michael Brown in 2014 and was never prosecuted? This was a case that launched the Black Lives Matter movement — a fight against precisely the sort of impunity for police violence that kills hundreds, if not thousands, of people of color every year.
Or Stanford swimmer Brock Allen Turner, who in 2015 was discovered by two graduate students in the process of raping a woman behind a fraternity house dumpster. Turner’s lawyer wrote that “he is fundamentally a good young man” and Turner’s father argued it was unfair that his rapist child should go to prison for “20 minutes of action.” The Golden Boy was given six months in jail by Judge Aaron Persky, the nearest thing to impunity justice could offer.
Or the City of Baltimore’s refusal to prosecute police officers for the 2015 death of Freddie Gray, who died an excruciating death in the back of a police van. Not even Obama’s Justice Department managed to find sufficient grounds to charge any of the officers with civil rights violations. A 2016 national study examining civil rights violations by 21,000 policemen found that only 3% were ever convicted of crimes against the public. Once again, impunity trumps justice.
In 2018 Georgia white supremacist William Christopher Gibbs showed up at an emergency room afraid he had exposed himself to ricin, and he and his car tested positive for the deadly agent. But prosecutors refused to charge Gibbs with domestic terrorism, citing “technical” reasons they couldn’t charge a white terrorist at a time it was so easy to charge Muslims. To this day, the U.S. government is largely unwilling to admit any danger to society of white supremacists.
Each year roughly one thousand people are shot by police, most of them people of color and a majority unarmed. But 98% of the officers involved are never charged with murder and police usually claim “reasonable” fear for their safety as a justification for killing an unarmed civilian. It is ironic, even if not believable, that a police officer can claim “I feared for my life” — and White America believes them — while any refugee seeking asylum saying “I feared for my life” is regarded as a liar.
When Brett Kavanaugh appeared before a Senate confirmation committee in 2018, witnesses cited his sexual predation as a teenager as the reason he was unfit for the Supreme Court. Yet the Senate — as it was when Anita Hill made similar charges against Clarence Thomas — was not disturbed by any of the allegations. Michelle Goldberg wrote in the New York Times, “Boys will be Supreme Court Justices” and she was right. Rebecca Solnit wrote that the old white men of America simply don’t want to know, and she was also right.
It is said that Justice is blind. If so, it is willfully blind. But it is clear that American justice has its eyes open wide enough to recognize color. The entire legal system, from top to bottom, offers a parallel system of justice for the rich and powerful and their enforcers, the police and military. For everyone else, especially if you are a person of color, the United States is the world’s largest police state. So central is police control in our way of life, American foreign policy is often conflated with being the “world’s policeman.”
And in a system that offers punishment for most and impunity for some, even pardons must be misused in the most obscene fashion.
In 2019 Donald Trump pardoned SEAL commander “Eddie” Gallagher and promoted him even after a military court found him guilty and demoted him in rank. Members of Gallagher’s SEAL Team 7 claimed he had killed innocent civilians and murdered an unconscious prisoner, then posed for pictures with the corpse. One platoon member who testified said of Gallagher, “The guy is freaking evil.” According to testimony, when the SEALs captured an injured ISIS fighter Gallagher stabbed him repeatedly in the neck. Another platoon member turned off his helmet cam immediately before the fighter died. Besides Gallagher, Trump also pardoned Sheriff Joe Arpaio who was convicted on federal civil rights charges, and Dinesh D’Souza who was convicted of federal campaign violations.
Americans like to say we are a “nation of laws” but what we have should rightly be called an oligarchy, a kleptocracy, or a kakistocracy in which the usual rules of law don’t apply to those with high-level connections. Whatever you call this system, just don’t call it a “democracy.”
The 2008 financial crisis was another example of the American justice system revealing itself as an agent of impunity for financial criminality. In 2014 — six years after the financial crash — ProPublica and the New York Times reported that the only Wall Street executive to ever be prosecuted as a result of the crisis was Kareem Serageldin. Meanwhile, in prisons all over the United States there are people still serving life sentences for marijuana possession. To add insult to injury, rather than hold Wall Street accountable for its own losses, a bipartisan group of rich and powerful men decided to make taxpayers cough up the almost 1.5 trillion dollars necessary to bail out Wall Street.
Last week a friend sent me a piece by Andy Borowitz from the New Yorker — “El Chapo outraged that his trial included witnesses.” It seemed funny at the time. Or would have been if it hadn’t so painfully highlighted the impunity granted to a traitorous criminal by the United States Senate.
So let us not weep. Democracy did not die today. You cannot mourn what never lived.