In what came perilously close to a "color-blind" argument for decarceration, Rosa Brooks disagreed with Elie Mystal about who should be punished for Kyle Rittenhouse murdering two protesters in Kenosha.
October 30, 2021

In what came perilously close to a "color-blind" argument for decarceration, Georgetown Law professor Rosa Brooks disagreed with the Nation's justice correspondent, Elie Mystal, about who should be punished for Kyle Rittenhouse allegedly murdering two protesters in Kenosha.

After Mystal explained in the most definitive terms why everyone should expect Rittenhouse to walk away from this trial a completely free young man, Tiffany Cross played a clip of an audience member at Charlie Kirk's Turning Point U.S.A. event, who quite literally asked when he can start killing liberals.

Cross reminds us, "No, it's not a joke. No, we {Black and brown people} have been on the receiving end of this treatment. This is serious, we're sounding the alarm, it's getting worse. What are we to do with comments like that and how should the infrastructure of this country address when that is the rising thoughts of a lot of people, millions of people in this country?"

Brooks correctly places responsibility for racist kids with guns on the adults around them.

"That's exactly how you get Kyle Rittenhouses, when have you all the adults around him saying, 'We need to protect ourselves, it's tyranny, they're taking away our rights,' I'm not at all surprised a 17-year-old kid thinks, 'Oh, gee, I oughta pick up my gun and go protect this empty store here,' and he ends up killing people," said Brooks.

Then, though, she argues against jailing Rittenhouse.

"The only thing I would quibble with Elie's response on is, I don't think the answer to this is putting Kyle Rittenhouse into jail any more than the answer to violence committed to other people, including Black kids should be putting them in jail," she says, taking issue with Mystal's earlier rant about the judge's clear bias in favor of Rittenhouse.

"You know, I think that when a kid commits a crime, it's usually because the adults around them have really screwed up, and that's what we're seeing right here," emphasizes Brooks.

Again, she isn't wrong when she talks about violent racists raising up more violent racists, using Marjorie Taylor Greene and John Eastman as examples, and the danger they pose.

It's when she claims helplessness she loses the plot.

"I don't know what we do except continue to denounce it, and except continue also to also take very seriously the idea that the bigger problem here is incitement in some sense."

To paraphrase a great activist friend of mine, I don't subscribe to the myth that white people are helpless in knowing how to undo racism. We created it. We wove it into every thread of our social and legal fabric. For four hundred-plus years we've come up with ways to perpetuate it systemically in deeply clever and mystifying ways. Don't tell me we cannot figure out myriad strategies to dismantle it. That's some Grade A bullsh*t right there.

To her specific point, ARE prosecutors going after the adults for incitement? They are NOT. Is Kyle Rittenhouse's mother being charged with a crime? She is not.

Cross gently warns Brooks against "comparing Kyle Rittenhouse to other folks," before giving Mystal the chance to respond. Mystal — generally anti-incarceration by philosophy and nature, by the way — puts the situation into a starkly different perspective:

"Kyle Rittenhouse was in Kenosha after protests of the Jacob Blake shooting, right? Jacob Black was shot six times in the back by a cop who was not charged. Who was not prosecuted. Who was not disciplined by his police department, and in October — just a couple weeks ago — Merrick Garland's Justice Department declined to press charges against the cop, Rustin Slatsky, or whatever, who shot Jacob Blake in the back six times," he rattled off. "So if you aren't going to prosecute the cop, and you aren't gonna prosecute the kid, who do you prosecute? Who gets punished for killing us? Because it's got to be somebody."

Brooks doesn't have an answer for that, and pivots instead to a thinly veiled "both-sides" argument, but under the auspices of progressive anti-incarceration philosophy.

"I don't want to see the left falling into a habit the right is very attached to, which is deciding that the solution to all problems is to put more people in jail," she begins. "I think we have rightly criticized the right for doing that, and....I don't want us to start acting like, that itself the real answer. That we ought to make sure everybody in an equal opportunity way gets put into prison."

The left ISN'T doing that, though. Au contraire! The left is STILL not going after people who tried to overthrow the goddamned government with anything more than probation and $1000-fines! To argue against jail for Rittenhouse just because you're terrified of some far-off, imaginary slippery slope, directly to the faces of Black people who are telling you, "Yes, jail is terrible - believe us, we know, because you put us there for carrying the wrong backpack, but in Rittenhouse's case, send that motherf*cker to jail!" is some misguided, condescending, counterproductive progressivism in action.

The kicker was when Brooks ends with telling Mystal and Cross where the real "focus" needs to be.

"This is more of a cultural and political issue. We're going to have to change it the old fashioned way, by changing people's minds. Putting more people in jail, it's not that that has no place, it has some place. Sometimes it does, I agree. I don't think we should be falling into that same trap of thinking that's the answer or the primary focus we should have," opines the woman who shapes young legal minds at Georgetown Law School.

What she fails to emphasize, though I really have no doubt she believes this, is that the hearts and minds that need changing belong to white people. The politics and culture of white people right now are more resistant to change than ever. Just ask teachers in Virginia who are trying to teach Toni Morrison. Just watch any school board meeting.

What she fails to recognize in any overt way is that before decarceration can truly happen, OVER-incarceration of Black people has to end. (She touches on it briefly in the beginning, but it's simply a passing acknowledgment.) Racist police systems need to be overhauled if not abolished. Prosecutors must charge police with crimes for abusing Black citizens in their precincts. Qualified immunity must end. The Supreme Court needs to be expanded.

To come onto the Cross Connection with Tiffany Cross and Elie Mystal trying to make anti-incarceration arguments about Kyle Rittenhouse, without also being ready to scream about all that other stuff? That's just weak.

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