Last year in August, protestors took to the streets in Kenosha, Wisconsin, to protest the police shooting of Jacob Blake, a Black man who was shot seven times in the back and is now paralyzed from the waist down. Kyle Rittenhouse traveled from his home in Antioch, Illinois, with an AR-15 to allegedly protect local businesses from looting. While in Kenosha, he shot three protestors, killing two. Since then, conservatives have lauded him as a hero and fundraised $500,000 for his legal defense. Rittenhouse is currently on trial facing two counts of homicide, one count of attempted homicide, and two counts of recklessly endangering safety for firing his weapon near others. Rittenhouse pleaded not guilty to all of the charges, arguing that he shot the three men in self-defense.
Surprisingly, Rittenhouse, whose murder trial is being televised across the country, isn’t the only talked about member of the courtroom. Instead, much of the critiques and media attention has centered around Judge Bruce Schroeder.
Schroeder first grabbed media attention when he ruled that the people shot by Rittenhouse could not be referred to as “victims,” but that referring to them as “rioters” or “arsonists” was acceptable. At one point, Schroeder yelled at the lead prosecutor, Thomas Binger, for attempting to introduce a new line of questioning. At another point, Schroeder’s phone went off and his ringtone played the tune of God Bless the USA—a song often used by former President Donald Trump at his campaign rallies. He also had the jury clap for a defense witness who was a veteran and made a thinly veiled racist comment when he said, “I hope the Asian food isn’t coming … isn’t on one of those boats from Long Beach Harbor,” seemingly in reference to the supply chain backlogs. Rittenhouse had also initially been charged with possession of a dangerous weapon since he was 17 years old at the time of the shooting—arguably the easiest offense to convict him on—but Schroeder dropped that charge on Monday.
To many, Schroeder’s clear bias and behavior during the Rittenhouse trial has offered proof of the existence of two justice systems: one for BIPOC, and one for white folks. Nathan Yaffe, an immigration attorney and abolitionist organizer, cautions against “framing the friendly treatment of Rittenhouse as a double-standard or evidence of ‘two justice systems.’” He says it’s easy to see why the system treats different people differently when we acknowledge its true purpose: the “preservation of racial capitalism and white supremacy.” In fact, little makes this case exceptional apart from the fact that Rittenhouse is being tried at all. It’s quite rare for the state to take action against white supremacist vigilantes (perhaps because so many police officers belong to the same groups), but individual cases do exist. Similar to the rare cases where a killer cop is charged and/or convicted, the state uses these individuals as sacrifices, attempting to prove the efficacy or fairness of the system. It’s important that we resist the temptation to feel vindicated that something is happening to Rittenhouse, instead realizing that that something is really just a feeble attempt to rehabilitate the image of the carceral state.
This trial and this judge should show us that the carceral state cannot be rehabilitated. Schroeder can act the way he’s acting in this trial because that is always how judges are allowed to act. Yaffe explains that judicial discretion nearly always “replicate[s] and compound[s] … violent aspects of the system” because they “have been fully indoctrinated in a dehumanizing, extractivist, white supremacist system” and their decisions reflect that. He argues that even when a judge resists the pull of the system because of personal beliefs, they are still applying the law, “which is white supremacist, extractive, and violent.”
When we see Schroeder using his discretion in a way that favors Rittenhouse, we recoil because we don’t like Rittenhouse. In reality, judges behave this way all the time as they use their so-called better judgement to make decisions that have massive implications on people’s lives. That is an unexceptional, daily part of the criminal punishment system. Usually, that discretion is being applied against people whose cases don’t make the news. In New York, where Yaffe practices, he says it’s “common for the state to incarcerate someone who illegally possesses a gun for anywhere from five to 15 years—merely for possession.” These people are mostly Black, and some are Latinx. Before Rittenhouse was cleared of his misdemeanor charge for illegally possessing a gun, Yaffe predicted it would happen, adding that “people who are racialized and rendered surplus by racial capitalism are inherently threatening when they possess a gun, no matter the reason, but vigilantes who go out looking to shoot protesters in defense of white supremacy are sympathetic, or even to be celebrated.”
This is why prison and police abolitionists see no reason to celebrate Rittenhouse’s potential incarceration and won’t be surprised at his likely acquittal. In the unlikely scenario that he is found guilty and sent to prison, the result will be that a white supremacist vigilante is sent into a white supremacist facility, where white supremacists prison guards target Black and non-Black people of color daily.
“I think it’s no exaggeration to say that his incarceration may do more material harm than good because we know that prison does not address or reduce violence, but his incarceration may lead to more violence being directed at people he’s locked up with,” Yaffe said.
It’s not a stretch to imagine racist prison guards siding with or protecting Rittenhouse at the expense of Black people or anti-racists on the inside. In fact, there are documented cases of this happening. When prison preservationists call for the incarceration of more white supremacists, they are not considering how dangerous of a situation that could be for folks already incarcerated among white supremacist correction officers and their ilk. Yaffe rightfully points out that “you don’t have to have any empathy or compassion for Rittenhouse as an individual to recognize that responding this way to his violence makes no sense.”
We shouldn’t look to the criminal punishment system for justice in the Rittenhouse case. Justice is not something it can or aims to provide. Instead of supporting the prosecution and incarceration of one white supremacist, we should be focusing on the dismantling of the prison industrial complex which is a white supremacist system.