Jeffrey Robinson

“I’m sorry, I can’t explain that.”

That’s what prosecutor Jason Hermus said to Botham Jean’s parents after the jury gave Amber Guyger a 10-year sentence for intentionally murdering their son. Jean’s father shook Hermus’ hand and said, “You fought a good fight.”

Jean’s brother hugged Guyger, saying he did not want her to go to jail. The judge also embraced Guyger and gave her a Bible. Is this a sign of a new wave of racial healing in the criminal legal system? Could it be the beginning of the end of excessive sentences in America or a step down the road to prison abolition?

Unfortunately, it is something less hopeful, less humane, and less admirable.

America has a two-tiered criminal justice system — and while both tiers are bad, they are mostly separate and completely unequal. The most important factor for membership in the lowest tier is race. Like any rule, there are exceptions (especially for rich non-white people), but the rule is nonetheless deeply embedded in our system. Take a second to imagine that the roles were reversed in Botham Jean’s murder. 

Botham Jean is a Black Lives Matter activist. After a 14-hour day of protesting, he is talking on the phone to a married coworker with whom he is having an affair, when he claims he mistakenly walks into the wrong apartment. Inside the apartment is the actual renter, a white off-duty police officer, dressed in shorts with no pockets and eating ice cream. Jean claims he yells at the off-duty officer to show his hands, though no nearby witnesses report hearing this. He almost immediately shoots the officer twice, later admitting he intended to kill him. Let’s continue. 

At trial, Jean’s explanation for why he didn’t think of the first aid supplies in his backpack was that he was on the phone with a 911 operator, and that his mind was racing. Though Jean was trained in CPR and emergency first aid, he admits to only doing “a little CPR” and a sternum rub on the dying man. The reason he didn’t do more — he chose to stop to text his married coworker/partner.

When the question of whether the shooting was racially motivated was raised at sentencing, text messages to and from Jean are revealed (identical but reversed versions of messages sent to and by Guyger). In one message, Jean’s friend complains about a parade for a murdered white political leader who championed the rights of white people. When a friend asks, “when will this end lol,” Jean responds in jest, “When the leader is dead… oh, wait…”

Finally, two days before the shooting, a friend appeared to offer to give Jean a German shepherd with the warning, “She may be racist.” After some back and forth, Jean responds, “It’s okay, I’m the same.”

In America, BLM activist Botham Jean would not have gotten a 10-year sentence for “mistakenly” shooting a white police officer. That is because the life of a white police officer would be valued differently. Amber Guyger’s sentence is not a harbinger of racial healing in the criminal legal system, but rather a retreat to past long-standing traditions. It goes back to people who were responsible for racial terror lynchings, yet never prosecuted. It goes back to sentencings like Brock Turner’s, where a judge was unwilling to ruin the life of a young white man convicted of rape by sending him to prison. It explains how a federal judge could say that Paul Manafort lived “an essentially blameless life” in spite of evidence that he committed multiple fraudulent acts over the span of a decade.

And what about the judge hugging Guyger? Christopher Scott, a black man who spent 13 years in prison for a murder he did not commit, provided an interesting take. Scott never received a hug from a judge in all his experiences with the criminal justice system, including at his exoneration hearing in Dallas County in 2009.

“I’ve watched all of the exonerations that happened in Dallas County — I’ve never seen it,” said Scott, who founded an organization that investigates wrongful convictions. “We don’t get handshakes, we don’t get hugs, we don’t get Bibles. They just say, ‘We’re sorry for what happened to you, and you are a free man to go.’” If Guyger was the first defendant this judge has hugged, I would like to know why.

The very idea that crime can be solved by locking someone in a cage is, rightfully, under attack. Not only do long prison sentences not make us safer, but they have devastated black and brown communities across America. Prison conditions and collateral consequences are the one-two punch that creates needless roadblocks to success for people reentering their communities after incarceration. All of these critiques of our criminal legal system are true and valid, but upon deeper inspection, it becomes clear that Amber Guyger’s sentence is not a response to those critiques.

Rather, Guyger’s sentence highlights much of what is wrong with sentencing in America. It would be a travesty to confuse her sentence’s leniency —and the empathy showed to her by the court — as progress on the road to justice for people of color. 

Jeffery Robinson is ACLU deputy legal director and director of the Trone Center for Justice and Equality.

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