Neither Left nor Right, but Catholic
ON THE ARBITRARY ENFORCEMENT OF CIVIL RIGHTS LAWS
By Stephen M. Krason
A recent national news story told of the sentencing to prison of a former University of Mississippi student who, after excessive drinking and with a couple of fraternity brothers, during the night put a noose and Confederate battle emblem on the campus statue of racial justice hero James Meredith. Graeme Phillip Harris received six months in federal prison after pleading guilty to using a threat of force to intimidate a group of people at the university. Initially, he was indicted for conspiracy to violate civil rights, which would have potentially carried a ten-year sentence. Harris clearly was involved in the episode, but just because he pleaded guilty doesn’t necessarily mean that he believed that he was intimidating anyone. Over 90% of criminal cases in the U.S. are not adjudicated at a trial and Harris likely pleaded guilty because he wanted to avoid the risk of a decade behind bars.
In spite of the outrageous and reprehensible nature of the act, the case raises a number of disturbing questions about the use of civil rights laws today.
What does it mean to conspire to violate civil rights? The Anglo-American legal tradition required that for a law to be valid, it had to specify what the offense is. The U.S. civil rights laws are broadly written, however, and an ever-increasing number of things now go into the category of “civil rights.” In fact, even the term “conspiracy” has gotten an increasingly slippery meaning thanks often to prosecutors intent on convictions and weak on legal ethics. It now appears that a “civil right” is anything that a secular-leftist national administration or Supreme Court majority wants to call one, such as gender identity and same-sex “marriage.” They often take their cues from secular-leftist interest and legal advocacy groups, like the NAACP (which supports legal abortion, homosexualism, same-sex “marriage,” and climate-change legislation, among other things). The head of the Justice Department’s Civil Rights Division who moved the prosecution against Harris, by the way, previously worked for both the NAACP Legal Defense Fund and the ACLU. The ACLU—the “great protector” of civil liberties—now insists that our “first freedom,” religious liberty, has to give way when Christians don’t want to provide services for same-sex “weddings.”
In recent decades, prosecutors have been known for stretching the meaning of criminal statutes to include in them conduct that was never thought of by the legislative bodies that enacted them. Utilitarianism—achieving the end sought—has too often become the standard in criminal prosecutions. So, in the Harris case it appears that the notion of “intimidation” took on a new meaning. Apparently, no longer do prosecutors have to show that a specific person was actually intimidated or threatened or that anyone’s civil rights actually violated, just that there is possibility of a kind of generic or generalized intimidation. This is a far cry from what the civil rights laws were set up to do: to protect individual persons in actual cases from having legally protected rights denied to them. In addition, the use of federal criminal civil rights laws has generally been confined to actions under “color of law,” meaning actions by government officials or operatives. That clearly was not the case here. Harris, an intoxicated fraternity boy, was hardly acting under color of law.
That raises the issue of the intent of the prosecution. Was the Harris case jumped on by the Justice Department just to make an example of him, or to deter similar conduct? Deterrence, to be sure, has been one of the purposes of criminal law. It is not, however, the basic purpose, which is to see that justice is done. As the sound ethician will emphasize, excessive punishment for an offense—even in the interest of deterring similar behavior—is unjust. For as obnoxious as the action of Harris and his cohorts was, it is hard not to conclude when looking at the facts that the legal response was “over the top.” For punishment to be ethical, it must fit the offense. It is indeed cruelly ironic that an Obama administration that is commuting prison sentences for non-violent drug offenders on the ground of their being excessive would so readily undertake a prosecution for something like this that could send someone to jail for ten years. It’s not an excuse to say that the Ole Miss episode could have enflamed racial tensions and so hurt the community. Aren’t the drug pushers that Obama is letting go free hurting the community—specifically the minority community—probably a lot more than this episode could have hurt it?
Are likely adverse community reactions now supposed to be the basis for criminal civil rights prosecutions? Should the mob, or potential mob, determine who the heavy hand of the law is to come down on? Such a utilitarian notion is democracy at its lowest: ochlocracy or mob rule. We saw this vividly under the presidency of the senior Bush, with the Rodney King case, when the federal government responded to the South Central Los Angeles race riots not by prosecuting the rioters, but by a criminal civil rights action against the police officers in the case after their acquittal on state charges. It was for all practical purposes double jeopardy—to achieve an end. In the Harris case, the Justice Department even lowered the threshold of what those who take to the streets have to do for it to respond: there were no riots at Ole Miss, but just some demonstrations.
The Obama Justice Department wouldn’t even pursue a civil case—to say nothing of a criminal one—against the New Black Panther Party for harassing voters at a Philadelphia polling place during the 2008 election, even though this was direct intimidation. They claimed it was a minor incident—even though racial epithets were used against Caucasians and one of the NBPP members waved a billy club. How come the Justice Department isn’t investigating the Black Lives Matter marchers who chanted “Pigs in a blanket, fry ‘em like bacon” at the Minnesota State Fair in August, even though this arguably was encouraging attacks on police officers? Or how about investigating the violation of property rights—which are, after all, civil rights—by the Ferguson, Missouri rioters? If the kind of remote intimidation that was the crux of the government’s case against Harris is now all that’s needed for civil rights prosecutions, why haven’t we heard anything about an investigation after red paint—suggesting blood and so perhaps the threat of physical assault—was thrown on a statue of Christopher Columbus in Boston’s North End where the population is 90% Caucasian? “Black lives matter” was also spray painted on the statue. The answer might lie in a 2010 report of the U.S. Civil Rights Commission, which found many instances of “open hostility and opposition” within the Justice Department to pursuing civil rights cases where Caucasians were the victims. The Obama administration seems to believe that some groups have enforceable civil rights but others don’t.
The local authorities in Oxford, Mississippi—where there is sensitivity about being attentive to civil rights issues in light of the University’s and the state’s segregationist past—decided not to pursue any legal action against Harris and his cohorts. Unlike in Boston, the statue had not even been defaced, so they did not think they could even make a case for vandalism—and unlike the Justice Department they would not stretch the obvious meaning of the law to achieve an end. As objectionable as the action was, a sense of propriety suggests that it should not have even gone into the legal arena but rather been addressed by authorities at the University. Perhaps expulsion from Ole Miss instead of federal prison is what was called for.
The Harris case not only illustrates how the secular left now decisively promotes biased, unequal, and disproportionate justice—favoring certain groups and meting out excessive penalties to others—but also its lack of a sense of basic charity and the need for a community of friendship. Is it really right—charitable in the most basic sense—to destroy this young man’s life for a drunken fraternity episode, even if his intentions were bad? Does the left not understand that responses like this and dissonant official treatment of groups only creates hostility—as much or more than what Harris, et al. did—and not the community of friendship that Aristotle explained is needed to make for a healthy political society in the long-run?
The secular left always likes to tout itself as promoters of human rights. For human rights to have meaning, however, requires the upholding of the rule of law. At the core of the rule of law is the belief that the application of law cannot be arbitrary or crassly result-oriented. It cannot depend on the whim of government or be applied selectively, nor can it just be made up as we go along. The rule of law is needed to restrain tyranny, and so was a central principle of the American Founding. Maybe the left’s inattention to it underscores the lack of regard they seem to have of late for the Founding. In any event, the questions raised by the Harris case—along with the increasing willingness to minimize such central rights as religious liberty—underscore the need for a long overdue national debate about reform of our civil rights laws. Some have wondered whether civil rights are becoming “civil wrongs.” Certain people might say that it’s fine to bend the law to get people like Harris. We should keep in mind St. Thomas More’s warning in A Man for All Seasons: for the sake even of getting the devil—a good end if there ever was one—we should not push aside the requirements of law because then men with the power will no longer be restrained, and they’ll turn on the rest of us.
Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly (sometimes bi-monthly). He is Professor of Political Science and Legal Studies and Associate Director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also Co-Founder and President of the Society of Catholic Social Scientists. Among his books is The Transformation of the American Democratic Republic, and two recent edited volumes: Child Abuse, Family Rights, and the Child Protective System) and The Crisis of Religious Liberty. This column originally appeared in Crisismagazine.com and may be freely reproduced so long as the place of its original publication is noted.