How the Bundy trial embodies many of America’s divisions

The conflict touches a number of flashpoints in today’s political climate.

 

This article was originally published on The Conversation. Read the original article.

It’s that time of year again: The Bundys are going to trial. This fall, brothers Ammon and Ryan Bundy and their father, Cliven, will face charges over a standoff with federal officials in a dispute over federal lands in Nevada.

Many are wondering if they’ll be let off the hook. The two Bundy brothers were acquitted in an October 2016 trial for a different standoff in Oregon. The jury’s “not guilty” verdict on conspiracy charges for the Oregon standoff struck much of the public as shockingly lenient. As a law professor who researches rural land use and juries, I’ve found that both conflicts over public lands and jury decisions often bring up the same question: Who gets to decide what justice is in America?

Horseback riders on the ridge near a Bundy support rally in Bunkerville, Nevada. They later rode to a nearby wash to aid in the release of cattle impounded by the Bureau of Land Management. This St. George News file photo was submitted to St. George News April 12, 2014.
Photo courtesy of St. George News / StGeorgeNews.com

Geography and juries

Geography matters in the U.S. justice system.

The Bundy trials — and the trials of their supporters, several of whom also walked free for the 2014 standoff earlier this year — have made this clear. Trial outcomes can vary depending on where they take place. The Bundy trials to date may well have gone differently in front of juries from Manhattan or Miami.

Part of the geographical subtext is that the Bundy family is not alone in their anti-federal sentiment. Most westerners want to see federal lands stay federal and people are rightly disturbed by the tactics of the Bundys and other militant, anti-federal Sagebrush Rebels. Yet, other scholars and I have argued that there is a kernel of truth to their complaints.

Namely, the Bundys and their supporters claim that the federal government is “tyrannical.” A less militant version of that sentiment is that federal agencies could be more fair, consistent and inclusive with local communities in the region. The Department of Interior manages about one-fifth of the land in the United States through the National Park Service, the Fish and Wildlife Service and the Bureau of Land Management. Monitoring and enforcing regulations on this vast territory is difficult. Many western communities think federal agencies manage public lands arbitrarily or unfairly.

A frequent criticism of these agencies, who have a daunting mandate with limited resources, is that they are inconsistent. Another is that they can be unpredictable. For instance, the Bureau of Land Management allowed Cliven Bundy to graze his cattle illegally for 20 years, which could look like tacit approval. Local communities have also felt excluded from agency decision-making or looked down on by federal representatives.

In an unusual move, one juror in the October 2016 trial spoke out after the trial. The anonymous juror accused the prosecution of “arrogance” and an “air of triumphalism,” which may suggest a view of federal representatives as elitist outsiders. However, he also emphasized that “not guilty” did not mean “innocent.” He insisted that the acquittal was not a sign that the jury agreed with the Bundys’ stances. Nonetheless, the populist-cowboy tone of the Bundy trials underscores the subjectivity of justice; one person’s terrorist may be another person’s folk hero.

Race and juries

Race also plays a role in the Bundy cases.

Some observers shocked by Ammon’s and Ryan’s 2016 acquittal noticed that their jury entirely comprised white people. “All-white jury” tends to be used synonymously with “unjust jury.”

Like geography, race matters to juries. It’s not as simple as “white people vote this way and black people vote that way,” or that all-white juries are automatically unfair. However, social science studies have shown that jury demographics affect outcomes. For instance, white jurors are substantially more likely to favor the death penalty in murder cases. Generally, more diverse juries are believed to deliberate for longer, make fewer factual errors and discuss more information, including questions of race.

Yet, studies have shown that courts in the United States often don’t do a good job of making juries representative of the population. “All-white” can also mean unrepresentative. Unrepresentative, in turn, suggests undemocratic. Race and geography interact, too: What counts as representative depends on the local population, and different courts have different procedures for picking their juries.

In the 2016 Bundy trial, the optics were troubling for many. At a time when people of color comprise most of the prison population, it may have looked as if the all-white jury in this case was lenient with the Bundys. The Bundys’ white privilege was questioned as law enforcement’s relatively gentle treatment of them at the 2014 standoff stood in contrast to the police killings of Michael Brown and Eric Garner that same year. Majority-white juries have also seemed lenient with police officers accused of killing people of color. Thus, it is not a stretch to infer from this case confirmation of a dual legal system: a lenient one for white people and a harsh one for people of color, both of which exclude people of color from decision-making.

Juries are designed to be a check on government overreach. Yet, when juries are not representative, they may become just another vehicle by which the powerful wield influence. In this light, the Bundys’ October 2016 trial by all-white jury does look problematic, as only 76.4 percent of Oregon’s population identifies as “white alone.”

The Supreme Court has addressed questions of how juries represent the population and established some standards to ensure minimal representativeness. For example, the pool of people called to the courthouse for jury selection (known as “the venire”) must represent a “fair cross-section of the community.” However, juries consistently underrepresent people of color, the young, the poor and other groups. This lack of representativeness in turn affects outcomes and undermines the public’s trust in the criminal justice system.

Law and distrust

So much is at play in the trials of the Bundys and their supporters: the debatable phenomenon of white, rural, male, working-class alienation; longstanding conflicts over public lands; the role of race in the criminal justice system; and the deep racial and geographical divisions that weigh on the country.

The ConversationPerhaps the clearest theme is that distrust of our legal institutions abounds, fueled by both the perception and reality of being excluded.

Ann Eisenberg is an assistant professor of law at the University of South Carolina

The Conversation

High Country News Classifieds
  • COMING TO TUCSON?
    Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • DEVELOPMENT DIRECTOR
    Crested Butte Land Trust seeks a development director to lead its fundraising efforts. Remote and unspoiled, Crested Butte is located in one of the Rockies...
  • PRICE REDUCED $94,300 - LOT SOUTH OF MONTROSE
    5-Acre Home Site, Great Views with Spectacular Sunsets From a South Facing Home Site. Excellent for Passive Solar Design. Covenants, No HOA. Keller Williams Co....
  • CHARMING HOME/FARM NEAR CLIFF, NM
    3 bed/2 bath, detached strawbale building. 11.7 acres, barn, corrals, fenced. Wells, solar panels, greenhouses. Paved access. 575-535-2568.
  • STAFF ATTORNEY
    WildEarth Guardians seeks two public interest-focused staff attorneys with a minimum of 5 years experience to join our legal team. Experience with at least some...
  • EXECUTIVE DIRECTOR OF NEW MEXICO WILDLIFE FEDERATION
    The New Mexico Wildlife Federation is seeking an Executive Director, a visionary leader who is passionate about public lands, dedicated to executing an innovative strategic...
  • CUSTOMER SERVICE SPECIALIST I
    HIGH COUNTRY NEWS Customer Service Specialist I General Statement of Duties: Works closely with the customer service manager performing high-volume routine computer database work. Also...
  • ARAVAIPA LAND STEWARD
    The Aravaipa Land Steward coordinates preserve stewardship work and general operations including maintenance and general preserve management. Implements preserve management plans, which may include species...
  • VP OF DEVELOPMENT
    seeks a talented and dynamic development professional, with a passion for protecting our natural environment, to lead our development and fundraising team.
  • EXECUTIVE DIRECTOR
    The Native American Fish and Wildlife Society seeks an Executive Director in Denver, CO to serve as the Chief Administrator of the national Native American...
  • DEVELOPMENT ASSISTANT
    High Country News seeks a development assistant to assist with fundraising campaigns. HCN is an award-winning, national news magazine. Strong candidates will have experience administering...
  • LAND ACQUISTIONS SPECIALIST - RENEWABLE ENERGY
    Energiekontor US seeks experienced local candidate, must reside in western South Dakota. Send resume and cover letter to: [email protected]
  • EXECUTIVE DIRECTOR
    Seeking passionate full-time Executive to lead the oldest non-profit organization in Idaho. Must have knowledge of environmental issues, excellent organizational, verbal presentation and written skills,...
  • CONSERVATION DIRECTOR
    Carbondale based public lands advocate, Wilderness Workshop, seeks a Conservation Director to help direct and shape the future of public land conservation on the West...
  • TROUT UNLIMITED BIGHORN RIVER BASIN PROJECT MANAGER
    The Bighorn River Basin Project Manager identifies and implements projects to improve streamflows, restore stream and riparian habitat, improve fish passage and rehabilitate or replace...
  • DIRECTOR OF VISITOR SERVICES & BOOKSTORE OPERATIONS
    The San Juan Mountains Association in Durango, CO is seeking a Director of Visitor Services & Bookstore Operations to lead our visitor information program &...
  • INTERNET-BASED BUSINESS FOR SALE
    Dream of owning your own business, being your own boss, working from home ... this is the one. 928-380-6570, www.testshop.com. More info at https://bit.ly/2Kgi340.
  • TRIPLEX .8 ACRE KANAB, UT
    Create a base in the center of Southern Utah's Grand Circle of National Parks. Multiple residential property with three established rental units and zoning latitude...
  • LIGHTWEIGHT FLY ROD CASES
    4 standard or custom lengths. Rugged protection for backpacking. Affordable pricing.
  • FIVE-ACRE VIEW LOT WITH WELL
    5 acres, well. Abuts Carson NF; hike fish ski; deer turkey elk.