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Red Process, Blue Process, Due Process
On Kyle Rittenhouse, Alec Baldwin, and political polarization in the criminal injustice system.
Once upon a time, people of differing political opinions could still remain on amicable terms. You may not have liked others’ views, but at least you could debate them and find common ground, or perhaps even just tolerate their existence.
Not anymore. Tribes in America used to be based mostly on the color of your skin. Immigrants in NYC once voted on tribal terms: Irish voted for Irish, Italians for Italians, Puerto Ricans for Puerto Ricans, Chinese for Chinese.
Nowadays the divide is more on the color of your political party. Are you on Team Blue or Team Red? As Yascha Mounk points out,
Fifty years ago, out-group hatred in the United States primarily involved race and religion: Protestants against Catholics, Christians against Jews, and, of course, white people against Black people. Most Americans did not care whether their children married someone from a different political party, but they were horrified to learn that their child was planning to “marry out.”
Today, the number of Americans who oppose interracial marriage has fallen from well over nine in 10 in 1960 to far less than one in 10. And as the rapid increase in the number of interracial babies shows, this is not just a matter of people’s telling pollsters what they want to hear. In contrast to the dynamic in other deeply polarized societies, the division in America between opposing political camps revolves less around demographics and more around ideology.
Jennifer McCoy affirmed this, when I asked her about the difference between the United States and other perniciously polarized democracies: “Unlike many other polarized democracies, we are not a tribal country based on ethnicity … The key identity is party, not race or religion.”
I recently read that Alec Baldwin was charged with manslaughter for firing a gun at someone that he allegedly thought was unloaded. When I got on Twitter, I expected to see armchair lawyers arguing over whether or not the facts of the case could prove his guilt or not, arguing over the thresholds needed to convict, arguing over gun safety procedures.
Instead, what I saw was partisan mud-slinging.
We saw the old American biases during the O.J. Simpson murder trial. Americans were divided on racial lines, not political ones.
Back in 1995, most White Americans thought O.J. was guilty, while most Black Americans thought he wasn’t. Today, the majority of Black and White Americans believe OJ was guilty. Race used to be a dividing line in jury trial partisanship, so much that the Supreme Court ruled in Batson v. Kentucky (1986) that pre-emptory jury strikes could not be used to strike jurors solely based on their race. Any prosecutor that wanted to strike a potential juror from the pool must find a non-racial reason to do so.
Don’t get me wrong, race is still a source of tension when picking out juries. The Supreme Court revisited Batson in 2019, when it ruled in Flowers v. Mississippi that the state of Mississippi violated Batson rules in the case of Curtis Flowers, a Black man accused of murdering 4 furniture store employees. Flowers had gone through 6 trials:
Guilty, jury was all White, verdict overturned due to prosecutorial misconduct
Guilty, jury was 11 White and 1 Black, verdict overturned due to prosecutorial misconduct again
Guilty, jury was 11 White and 1 Black, verdict overturned due to Batson
Hung jury, jury was 7 White and 5 Black, and the votes to convict/acquit also happened to be 7-5
Hung jury, jury was 9 White and 3 Black, 1 Black juror was the sole holdout
Guilty, jury was 11 White and 1 Black, overturned due to Batson by the U.S. Supreme Court
Justice Brett Kavanaugh wrote the majority decision:
"The state's relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. We cannot ignore that history."
After that, the state of Mississippi gave up trying to prosecute Flowers, and he was freed after over two decades in prison. But the Flowers case and Batson in general raises thorny questions about what “truth” really is. Could it be possible that a jury of 12 Black jurors would have acquitted Flowers, while a jury of 12 White jurors would have convicted him, after hearing the same facts? Then does that mean that jury trials essentially become a game of trying to get the right demographics, rather than trying to find jurors that can be fair and impartial?
I’m not surprised to see Kavanaugh on the right side of this issue: the side of thorough due process. After all, he had faced his own trial by the court of public opinion just a year before, where support or opposition was mostly split among partisan lines: Democrats tended to believe Christine Blasey Ford, who had accused him of sexual assault, while Republicans tended to believe him, a fellow Republican. During his confirmation hearings, protestors had unfurled a banner reading WE BELIEVE ALL SURVIVORS.
Note that they went from saying “Believe women” to “Believe survivors” to “Believe all survivors” (and they had the nerve to gaslight us years later claiming they never said “all”). American history is filled with miscarriages of justice involving false accusations of sexual assault, from the Scottsboro Boys, to the various “Satanic Panic” cases of the 80s, to Tawana Brawley, to Brian Banks, to the Duke Lacrosse Three, to the Rolling Stone UVA cover story, to the Columbia “Mattress Girl”, and much more. Those are just the high-profile false-accusation cases: plenty more of these cases don’t get national attention. People have spent decades of their lives in prison after being wrongfully convicted, often via false accusations.
False sexual assault allegations don’t just affect men. The novelist Zora Neale Hurston was once falsely accused of sexual assault by 3 teenage boys. The chief accuser in the case had a well-documented history of mental health problems, yet Hurston was pilloried by the tabloid press that branded her a rapist with nothing but an accusation. The New York DA’s office was in possession of mountains of mental-health evidence that showed clear credibility issues, yet held on the bogus charges for a grueling half-year before dropping them. During that time, Hurston wrote to her friend Carl Van Vechten that “No acquittal will persuade some people that I am innocent…All that I have believed in has failed me. I have resolved to die”. Yet she refused to buckle under such heavy pressure and forged onward with her life. Today, Hurston enjoys glowing praise from the liberal literary elite, who seem to not care that there were alleged “survivors” that weren’t “believed”.
So imagine if Kavanaugh had taken the same logic and accused Blasey Ford of sexually assaulting him. He could’ve even thrown some social justice language in there and said that not believing male victims of sexual assault was upholding toxic patriarchal gender norms. In that case, would the protestors then have to have believed him, because one must believe all survivors?
But we know that something like that never would’ve worked, and that they’d would’ve done extreme mental gymnastics to explain how Kavanaugh could never have been a “survivor”. To the protestors, Ford was on their side, and Kavanaugh was on the enemy side. I would wager that many people who backed Curtis Flowers didn’t do the same for Brett Kavanaugh.
So now we get why people on Twitter were bringing up Kyle Rittenhouse when talking about Alec Baldwin. Kyle is Team Red, Baldwin is Team Blue.
Kyle Rittenhouse, to conservatives, is the hero that killed two violent protestors in self-defense during a protest. To liberals, Rittenhouse is a murderer that “crossed state lines” (he lived 20 minutes away from state lines) to deliberately kill people from their side.
Alec Baldwin, on the other hand, is a liberal that spent years on SNL mocking Trump with his impersonations. To conservatives, Baldwin is a smarmy liberal Hollywood actor and thus on the enemy side. To liberals, Baldwin is on their side, and thus they rushed to defend him.
The facts don’t really matter in this polarized partisan world. It didn’t matter to some that there was a video showing Rittenhouse being charged at with a skateboard and even had a gun pointed at him. To liberals, Rittenhouse was on the other team and thus was guilty. I expect something similar to happen on the conservative side if Baldwin stands trial.
Humans are naturally tribal creatures. Before the advent of civilization, we lived in tribes. We all had to share the same set of ideas and values in order for the tribe to survive. Anyone who expressed support for another tribe’s ideas was considered a liability and a potentially dangerous traitor. This makes us humans very susceptible even today to mob mentality and witch-hunting.
Our Founders predicted cancel culture. Our Founders knew human nature and installed safeguards to protect individual rights against the tyranny of the mob, like allowing unpopular speech, allowing civilians to bear arms, protecting personal privacy, and upholding the rights of the accused. Our Bill of Rights is the line between freedom and tyranny, and what makes us a free country. Benjamin Franklin believed so strongly in those rights that he quipped “it is better 100 guilty Persons should escape than that one innocent Person should suffer”.
America is in fact becoming more polarized. Critical race theorists tell us that we are nothing but our race: White people are eternal oppressors, Asians are White-adjacent for doing well in school, Latinos that vote Republican have multiracial Whiteness, Black people are eternal victims with no agency of their own. Race has become political affiliation: as Joe Biden said, “If you have a problem figuring out whether you’re for me or Trump, then you ain’t black”.
The question of one’s guilt or innocence should not depend on political views, gender, or race, but based on a rational interpretation of the facts. The ability to not give into primal tribalism was what built prosperous civilizations. We can either uphold civilization or give in to a world of warring tribes where your guilt is determined by identity rather than a search for objective truth.
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