The Political, Contested Thing of Crime and Consequences

George Floyd protests in New York City, 30 May 2020. Photo by Andrew via Wikimedia Commons

From its invention until 1903, Coca-Cola was made with actual coca leaves. The formula meant that a bottle of Coke contained around 9 mg of cocaine, which is about a sixth of a typical line of the drug. This was not unusual; beverages and patent medicines routinely contained cocaine, opium, and other narcotics in that time. For obvious reasons, these products sold very well. In 1900, the company sold 370,877 gallons of coca-cola syrup. My back of the envelope math puts that total somewhere around 50 million grams of coca leaves in one year. All of this was legal at the time, and a lot of people became quite rich off of it.

On May 12, 1986, Ronald Harmelin was pulled over by two police officers after he performed a U turn without fully stopping at a red light. Mr. Harmelin was polite and cooperative, even when the police ordered him to step out of his car. He informed the police officers that he had a .38 revolver in an ankle holster. Mr. Harmelin was licensed to carry the weapon and showed the officers his permit to do so. Nonetheless, the officers decided that Mr. Harmelin was acting nervously and “[sensed] that something was wrong,” so they patted him down. They found marijuana, arrested Harmelin, and then searched his car. Inside the car they found a satchel containing 672.5 grams of cocaine. He had never been convicted of a crime before.

Mr. Harmelin was then charged, tried, and convicted of possession of cocaine and the use of a firearm in the commission of a felony. Because of the amount of cocaine he was convicted of possessing (.0013% of the amount that the Coca Cola Company legally sold in 1900), he was sentenced to life in prison without the possibility of parole. He appealed his sentence to the US Supreme Court and lost, 5-4. The Court held in Harmelin v. Michigan (501 US 957 if you want to look it up) that the 8th Amendment’s prohibition of cruel and unusual punishment did not forbid a life sentence for a non-violent crime committed by someone without any prior convictions. I was born about a little over a month after Mr. Harmelin’s arrest, so he has been in prison for my entire life.

I thought about Ronald Harmelin when I read Kristin Devine’s piece last week on Urooj Rahman and Colinford Mattis. Rahman and Mattis are lawyers who participated in the protests against police violence that followed the murder of George Floyd. Rahman, a public interest attorney who represents indigent clients in eviction proceedings, was caught on camera throwing a molotov cocktail into an abandoned and vandalized police car. The two face federal charges that carry a mandatory minimum of thirty years in prison and a potential maximum sentence of life imprisonment.

Devine’s take on the subject is that the people upset about this case (and I am emphatically one of them) are asking for a different set of rules to apply to people who behave badly for reasons that we sympathize with:

Back in 2018 Will Truman wrote about the idea of breaking rules in the name of protesting, concluding that you gotta be willing to take your punishment when you want to protest because authorities need to enforce the rules fairly across the boards rather than suspending them whenever a cause happens to be popular.

His essay was targeted at high school students walking out over gun control, but it feels true to me universally; at any time when a group protests against the status quo in ways that disrupt order, even breaking the law itself, surely the individuals in that group should face some sort of penalty for that. Not because we are big fat meanie heads who hate protest, and not even because we think the protestors are wrong necessarily, but because when authority figures enforce rules for some members of society and not for others, it invites abuse. It invites a tyranny of the majority over the minority, because as Will so eloquently pointed out, at any point if a popular cause is granted special privileges (including disrupting the lives and even the safety of the minority who hold less popular opinions), and those same privileges are not extended to everyone, then that is tantamount to creating different sets of rules for different people in society.

If you were to ask Urooj Rahman about this, though, I have no doubt she’d tell you that there isn’t a single set of rules for everybody. There never has been. Ronald Harmelin could tell you the same thing. That’s exactly why she threw that molotov cocktail.

What counts as a “crime” in our society is a political, contested thing. It always has been and always will be. So too are the consequences for what we decide are crimes. We have made a series of political choices that classify the actions of people who are poor, people who struggle with mental illness and addiction, and people who aren’t white as crimes. Those people are harassed by police. They are held in jail because they can’t afford bail. They are sent to prison in numbers unmatched by any other country in the world. But the actions of the rich, the products of good schools who wear nice suits? The people who wear badges? Those people are systematically immunized from consequences when they behave badly.

In North Carolina, where I practice, it is a felony for an employee to take any amount of money from their employer. But if an employer illegally withholds wages from an employee, that is a matter for a class-action settlement that includes no admission of wrongdoing. People are routinely charged with murder in the county where I work for selling heroin to someone who later overdosed, yet the Sackler family only faces civil lawsuits for actions that have undoubtably caused thousands of overdose deaths. That’s why Ronald Harmelin is still in prison for possessing cocaine, but the Coca Cola Corporation is a multi-billion dollar business.

The problem isn’t just with what is classified as a crime. It is also with who is investigated, who is prosecuted, and with what. Police and prosecutors wield enormous discretion to ignore bad behavior outright, to offer misdemeanor deals instead of felony indictments, or to deliberately screw up cases. I guarantee that everybody reading this routinely breaks the law, in part because the criminal law is so vague and encompasses so many things. Everyone who drives speeds. Everyone has committed what was technically a misdemeanor assault or larceny. Everyone has trespassed at some point in their lives. In North Carolina, it is a felony to put baking soda in a container that resembles the sorts of containers used to store narcotics. Mooning somebody can be prosecuted as indecent exposure by an aggressive prosecutor, and in many states could put somebody on a sex offender registry for life. Because most of us are walking around doing things that could be charged as crimes all the time, the people in the law enforcement bureaucracy have tremendous power. They can use it to destroy the lives of people that offend them. They can also use it to immunize from consequences the people that they want to protect.

So let’s talk about what was happening when Urooj Rahman and Colinford Mattis were arrested. Nationwide protests had broken out after Derek Chauvin, a police officer, knelt on a defenseless man’s neck for eight minutes and forty-six seconds until he died. He was only charged with a crime after protests broke out. In the ensuing nationwide protests, the police have been caught on camera brutalizing peaceful protesters hundreds and hundreds of times. In New York, those police then deliberately refused to come to court, which allowed prosecutors to hold those arrested during the protests without bail. In Virginia, the police charged a state legislator with plainly bogus felonies for destruction of a Confederate monument that happened hours after she left a protest. They then tried to get the duly elected district attorney (who ran as a ‘progressive prosecutor’ and promised to rein in the abuses of the criminal justice system) removed from the case by falsely claiming she was a witness.

Much of this bad behavior isn’t just improper policing. When the police arrest peaceful protesters for no reason, destroy their phones, beat them with clubs, shoot them in the face with rubber bullets, tear gas them, or ram them with cars, they are committing felonies. Assault, false imprisonment, robbery, vandalism… these are charges for which ordinary citizens can be sent to prison for decades. They are crimes that have left dozens of protesters partially blind. They have broken bones, fractured skulls, and left people with permanent damage to their bodies. Almost none of these violent thugs have been charged with anything at all.

Urooj Rahman, on the other hand, threw an incendiary device into an abandoned and heavily damaged car. While homemade firebombs are inherently dangerous, nobody was injured by what she did. There is no evidence that she intended to hurt anyone either. Given the amount of damage already done to the car, it is unclear that she even inflicted a financial injury upon the police department. (Devine appears to think that Rahman is no different than Timothy McVeigh. It bears noting that Rahman didn’t hurt anyone, while McVeigh murdered 168 people and injured nearly 700 others. He accomplished this because he intended to kill people, and also because he used a 5,000 pound truck bomb rather than a lit rag in a bottle of gasoline).

Upon learning these facts, federal prosecutors could have allowed New York state courts to handle the matter. Those state authorities could have charged Rahman and Mattis with misdemeanor injury to property, which would likely still have destroyed both of their careers. They could also have chosen to prosecute the hundreds of police officers who assaulted protesters on camera. Indeed, leaving the case to the state authorities or bringing less serious charges would have been the normal way for such a case to play out. This is the only case NPR could find arising from the George Floyd protests in which federal prosecutors brought charges that carried the 30-year mandatory minimum. Instead, they chose to ignore the crimes of the police and try to put Rahman and Mattis in prison for the rest of their lives.

Federal prosecutors didn’t do this because they were applying some objective set of rules. There is no such thing. They did this because the police are on their team, while Rahman and Mattis are not. Their team gets to decide which crimes are punished and which people will spend the rest of their lives in a cage. If you don’t like that then you aren’t on their team, and they’ll use the system to destroy you for it. Get in line, citizens, and back the blue… or else.