The rule of law is ‘up in smoke’

In the United States (and elsewhere) there is a raging controversy concerning disparate sentences handed down for the same crime, depending on whether a perpetrator is black or white, rich or poor, privileged or underprivileged, etc.

It might be unfair to single out only one case – out of many millions, it would seem – but the so-called ‘Stanford Swimmer Rape Case’ is often held as a text-book example of this particular brand of discrimination.

Last month, Brock Turner, a student of California’s Stanford College, was convicted on charges of raping a fellow student while she was intoxicated and unconscious. In total he faced a maximum of 10 years; yet Turner (who was white, upper middle-class, and a potential Olympic medallist swimmer) was sentenced only to six months, after the judge unaccountably took his academic and athletic record into account.

“A prison sentence would have a severe impact on him,” Judge Aaron Persky said in his ruling. “I think he will not be a danger to others.” (Or as Turner himself might have put it, had he been an unmasked Scooby Doo villain: ‘And I got away with it, too… all thanks to that Perksy judge…”)

In any case: the leniency shown to Brock Turner provoked outrage in the US, and drew comparisons with much harsher sentences meted out to people from different ethnic and social backgrounds. It was immediately pointed out that prison sentences have a “severe impact” on ALL people who receive them… not just the rich and the spoilt. Yet this never stopped the law courts from handing down harsh sentences to other categories of people, sometimes over lesser offences.

These and similar arguments have been made before, naturally. But what makes this case stand out is that it also resulted in civic action to highlight the injustice. There was even a petition to oust the judge, on the basis that  “[he] failed to see that the fact that Brock Turner is a white male star athlete at a prestigious university does not entitle him to leniency. He also failed to send the message that sexual assault is against the law regardless of social class, race, gender or other factors.”  

This is significant because it strongly suggests that Turner’s case cannot be taken in isolation; and even more importantly, because the issue of ‘white privilege’ cannot be discussed independently of its polar opposite: discrimination against blacks. To simplify matters: people probably wouldn’t have complained so much, if it were a case of only one random individual getting let off lightly, by a system that was otherwise equally strict with everyone. That would be considered, at most, a minor blip. 

But if the same system is inherently biased in favour of white/rich defendants, while having no qualms about throwing the book at black or socially underprivileged defendants for comparable offences… then it becomes a systemic problem, not an individual hitch. If the ‘Stanford swimmer Rape’ case elicited such a determined response, it was because the hypocrisy and double standards it represented had become too conspicuous to ignore. 

I have no idea how things will turn out with regard to that particular case; what is evident, however, is that the issue it spotlights is taken very seriously indeed by civil society in America and elsewhere. And so it should be: what is at stake is nothing less than the rule of law… without which, ‘society’ itself (civil or otherwise) could quite literally fall apart. 

OK, enough about the Stanford Swimmer. I take it you’ve guessed where all this is leading to by now. The USA is hardly the only country in the world where the criminal justice system treats people differently according to their status in society. And the example we all saw with such graphic intensity in Malta this week was – in all aspects but one: the crime itself – actually a good deal worse.

I won’t go over the same arguments I raised in my Wednesday article, other than to update it with the latest two developments. 1) When I wrote that rapper Wiz Khalifa was treated differently from any other lesser mortal caught smoking pot in this country… it was BEFORE 11 people were arrested at the Isle of MTV concert for the same offence. 2) More photographic evidence has since emerged (if any were needed, after Wiz smoked a joint on TVM) showing him rolling another spliff in his hotel room.

Why is this worse (again, I stress, only in terms of law enforcement) than Turner’s case? Because unlike Wiz Khalifa… Brock Turner was, in fact, arrested and tried for his crime, just like anyone else. It was the sentencing that was questionable, not the process that led to a criminal conviction. 

In Khalifa’s case, there was no criminal justice process at all. I shudder to think what the reaction would have been in the US, had it transpired that there was enough evidence to arrest someone… but the police chose not to, because he was a ‘nice kid’. Well, that is exactly what happened here this week. There was enough evidence – evidence aplenty, judging by what the Maltese police usually understand by the word – to arrest Wiz Khalifa along with the rest of the 11 pot-smokers… yet the police chose to ignore it.

Is that even legal? Can the police simply pick and choose whom to apply a law to, and whom to let off the hook? I for one don’t think so… and if I’m right, it also indirectly means that all 11 of the people arrested last Tuesday (and the 26 arrested at Earth Garden last month… and pretty much anyone who’s ever been arrested on pot-related charges in this country) have grounds for a Constitutional case against the government, as victims of blatant discrimination.

Naturally, however, that is not how the police themselves view the situation. They even released a statement saying that the photographs had been ‘investigated’, but that no evidence of marijuana-smoking had been found. 

Sort of makes you wonder what shape, manner and form this ‘investigation’ actually took. Was Khalifa brought in for questioning? (I somehow doubt it, as there wasn’t anything on Sky News). Was his hotel room searched? Did the police speak to any of the other people visible in those photographs? And how did they miss the teenie-weenie detail that Khalifa actually captioned the photograph with the declaration: “I smoked a joint at the Blue Lagoon today”?

No evidence, indeed. But while the police’s PR department is busy drawing up replies to those questions – which technically should be coming from the ministries responsible for justice and the police: after all, both Owen Bonnici and Carmelo Abela have an interest in establishing why the rule of law clearly broke down on this occasion – let us see how the police statement holds up to other, analogous cases.

I already mentioned the 26 arrested at Earth Garden for a substance ‘thought to be marijuana’. Well, the substance in Khalifa’s joint was also ‘thought to be marijuana’ (by Khalifa himself, who even confirmed his suspicion in writing). So why is one case of ‘might-be marijuana’ prosecuted, but not the other?

Incidentally, it is worth remembering that the police, on another occasion (September 2013), had arrested and prosecuted someone merely for admitting – while under interrogation for an unrelated offence – to having once smoked marijuana in the past. No traces of the drug were actually found in his possession at the time; his mere confession alone, in the absence of ‘habeas corpus’, was considered sufficient evidence to secure a conviction. 

Yet suddenly, neither photographic evidence nor public confession is considered enough to secure even an arrest. I mean, honestly. Who do these people think they’re kidding?

Looks me to me that Wiz Khalifa smoked more than just a little marijuana while here in Malta. He also rolled up all the credibility of our country’s entire criminal justice system into a big fat spliff, and set it up in smoke.