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This is my first diary but not my first posting online.  This diary grew out of a response I made on a message board regarding Betty Baye's last column.  She was writing about standing up to institutional racism (the disproportionate representation of black men in the prison system) and taking the fight to the courts.  The message boards then went on and on about how they felt Ms. Baye was wrong because it implied that she hadn't considered that black men had broken laws and were being punished.

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But, Ms. baye is right in noting that African-American men are disproportionately represented in the prison system. There are more black men in the prison system because of sentencing.  It's not that black men should get off scott-free; it's that sentences tend to be harsher for black men.  Yeah, people need to be punished for breaking a law, but there's a big difference in the severity of punishments, and that was what Jena was about.  There's a big difference between aggravated battery and attempted murder.  The jena kids were charged with the latter before it was reduced under pressure.  It was rightly reduced.

But there's also a big difference between "aggravated second degree battery" and lesser forms of battery. The former requires the use of a "dangerous weapon."  The prosecution in the Mychal Bell case was allowed to argue that Bell's tennis shoes were a dangerous weapon.  It's clear from the statute that legislators were interested in dealing with what they saw as heinous crimes.  Other sections of the statute include special considerations for assaulting school teachers or police officers.  It also is the statute dealing with partial birth abortion and assisted suicide (earlier sub-parts of the statute).  The point here is that a "tennis shoe" is not like a gun, a knife or even a baseball bat.  It's likely that if Bell had been wearing ballet slippers that the same harm would have been inflicted.  The dangerous weapon section of the statute was to deal with violent criminals.  Here it was used to fan the flames of racism.  The DA didn't seek to prosecute the white kids under the "institutional vandalism" section of the Hate Crimes statute.  And really, he probably shouldn't have.  It should've been dealt with by the school (which it seems it was).  The racism in the Jena 6 case, however, was shown not by the hanging of nooses (a racist prank but not really intended as a threat--a clique of white kids were trying to claim their territory just as a bully tries to claim his lunchroom table by intimidating the nerdy kid--it's racism here, but they weren't going to lynch the kids).  The REAL racism was committed by the judge and the DA who pursued a nefarious use of the "dangerous weapon" clause of the statute.  Turning a tennis shoe into something else in order to get a longer sentence imposed is worse than the nooses or the "n-word."   The latter ruins someone's day (maybe) but the "dangerous weapon" clause ruins someone's (Mychal Bell's) life.

The point about all of this is noting the vast importance of appointing judges.  But the battles shouldn't be about pro-life or right to privacy people.  It should be about their philosophical understanding of what language is.  We can see how judges who misinterpret statutes have vast power.  Judges interpret statutes for juries and instruct them how to read them, and appeals judges review these interpretations.  In the appeals process, it's not the interpretation which was overuled to free Bell.  It was that he was a juvenile (the battery statute shouldn't have been interpreted in the first place).  But this first judge will continue to interpret laws poorly.  That is why, even though it's kind of boring, the appointment (and election) of judges should be based on what they understand language to be. Do they think the law means what congress (or the state legislature) meant when it passed the law, that it means what the judge understands it to mean, or that it means something different to each person who reads it?  If we're interested in having congress make the laws (that's how we go about fighting racism, by passing anti-racist laws like the hate crime bill), then all the work we do will be overturned if the judge believes that the meaning of the law changes over time or between readers (a "living law" or "living Constitution").  But there are, of course, really bad versions of looking for the original meaning of the law.  Scalia has it all wrong in his A Matter of Interpretation. Use of the dictionary to interpret statutes cannot help resolve the racism we see in the Jena 6 case.  A dictionary would only support that ruling, that a tennis show could be a "dangerous weapon."

While I'm no legal scholar, I want to emphasize that I believe that this issue of language is the most important one for battling racism in the courts: legal language can make it difficult to see where the racism really is.

Extended (Optional)

Originally posted to esteban arlt on Wed Oct 24, 2007 at 08:24 AM PDT.

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