One of the crown jewels of the Constitution is the Fourteenth Amendment -- which promises that there will be “equal protection” for all people under our laws. And yet, we all know this is a farce. In America, we routinely offer legal immunity to the rich and powerful, while giving the iron fist to everyone else. It is an ugly dichotomy we don’t talk much about -- but it has been on display during this past week of protests roiling cities across the country.
Take the events that transpired In New York. There, the government deployed law enforcement to conduct mass arrests of protesters, and also to run them over and violently attack them in the name of “law and order.” At the same time, the government granted health care executives legal immunity for their profit-maximizing decisions that may have contributed to the deaths of thousands of people in nursing homes during the coronavirus pandemic.
In Washington, it’s the same thing. We have a president who tweets about “law and order” literally at the same time his party is pushing a proposal that would shield corporate executives and prevent them from being held liable for endangering their workers during the COVID emergency.
Those new liability protections would be in addition to the de facto immunity he’s already giving his corporate friends: Indeed, at a time when the Trump administration has dramatically increased immigration prosecutions, it has driven prosecutions of white collar and environmental crimes to historic lows. That was an extension of trends that started under Obama, who increased immigration deportations and cracked down on whistleblowers, while reducing white collar prosecutions.
The result of all this was summarized by former Labor Secretary Robert Reich: “More peaceful protesters and journalists have been jailed in the past week than all the bankers who were jailed for fraud during the financial collapse.”
Police Get “Qualified Immunity,” Trump Shuts Down Anti-Brutality Initiative, States Pass Anti-Protest Laws
Not surprisingly, this dichotomy extends to the realm of criminal justice and civil liberties.
Our legal system now grants “qualified immunity” to police officers and public officials when they violate Americans’ constitutional rights.
As law enforcement brutality has been getting worse in recent years, Trump shut down the Justice Department’s initiative to scrutinize local police conduct -- and then he made it even easier for local police departments to obtain excess military weaponry. He did this at the very same time research has shown a link between police violence and the increased use of the Pentagon program that provides arms to local law enforcement agencies.
Meanwhile, Republican lawmakers in at least six states have offered legislation in recent years to protect people who run over protesters -- a move that was all too common this weekend. Some of the measures had support from local police unions and associations.
For everyone else, it has been the opposite of immunity -- Republican politicians who so often pretend to be defenders of liberty are now offering dissenters new “tough on crime” bills to try to criminalize protest.
From 2015 to 2019, there were 116 bills introduced in state legislatures to restrict the right to protest, and 15 states passed those restrictions into law, according to a new report from PEN America, a journalism advocacy group. This is a new phenomenon -- before Trump took office, there were almost no such state initiatives.
The report notes that the laws reflect the selective use of “law and order” -- they deliver harsher punishment to protesters while limiting “the liability of public or private actors for harm caused to protesters” and creating “carve-outs for law enforcement action against protesters.”
Immunity Is Now Baked Into Our Political Culture
Immunity for the powerful, crackdowns against the people -- this discrepancy is now baked into our laws, and embedded in our political culture itself. And that’s not only the fault of politicians -- it is our fault, too, because our elections and culture tend to reward it.
George W. Bush lied us into a war that killed hundreds of thousands of people, and yet he is routinely treated as a lovable, statesman-like figure. Donald Trump scammed investors and bilked vendors -- and he was rewarded by being elected president.
Trump’s likely general election opponent, Joe Biden, authored the crime bill (and still defends it), helped Republicans pass the bankruptcy bill and helped Bush lead America into the Iraq War -- and he was rewarded first by being named vice president, and then by being given the Democratic presidential nomination. His campaign is being advised by Rahm Emanuel, who remains at the highest reaches of Democratic politics even having left public office in disgrace after his administration covered up video of police murdering a teenager.
Meanwhile, the same Democratic Party tried to throw Bernie Sanders off the New York ballot, works to crush progressive primary campaigns, and threatens to blacklist consultants who work for grassroots candidates that dare to run against corrupt incumbents -- while party operatives are apparently permittedto work for corporate interests that attack the party’s candidates.
None of this is an anomaly. This is what America is: a place that eagerly gives out get-out-of-jail free cards to the powerful, while meting out harsh punishment to everyone else.
The question now is whether we can imagine a society that is different?
Can we imagine a legal system that punishes police violence and bigotry, repeals doctrines like “qualified immunity,” and protects the right to peaceably protest?
Can we imagine an economy that protects fleeced homeowners and impoverished renters from draconian bankruptcy laws, and instead deploys the iron first of law enforcement against the actual looters who are pillaging our communities -- the politicians, lobbyists and corporate CEOs who just stole $4 trillion from the public treasury?
Can we imagine a political system that holds elected officials accountable for their crimes, and empowers the leaders who are trying to fix the system?
In other words: can we imagine a better America?
Many of our politicians clearly can’t -- this is the world they have deliberately constructed, and they are perfectly happy to sit in their fortified bunkers as the world burns.
But the peaceful protesters braving threats of retribution and violence suggest at least some can still imagine that better world. Now it’s up to all of us to create it.
Andrew Perez contributed to this story.