The comedy and tragedy of Derek Chauvin’s probation request
In Shakespeare’s “King Lear,” during a moment of heightened paranoia driven by his daughters’ refusal to shelter him and his men, the titular character says, “Tremble, thou wretch,/That hast within thee undivulged crimes,/Unwhipped of justice.”
In his motions for mitigated departure and sentencing memorandum, Derek Chauvin’s lawyer argues that for murdering George Floyd, with what the court has held to be “particular cruelty,” Chauvin should receive probation.
His lawyer didn’t ask for 20 years — which is the maximum sentence under Minnesota state law for someone found guilty of possessing counterfeit money, the same charge for which Floyd was being arrested (although there’s no evidence he knew the money was fake). He didn’t ask for the 10-year sentence one can get for using counterfeit money to steal property valued between $5,000 and $35,000. He didn’t even ask for the five years you get for using it to steal something between $1,000 and $5,000. For stealing a human life, Chauvin’s lawyer, Eric Nelson, feels Chauvin should get no time at all.
Perhaps he believes the judge, Peter Cahill, is like Supreme Court Justice Roger Taney, who ruled in the infamous Dred Scott case that Black people — “emancipated or not” — “had no rights which the white man was bound to respect.”
Let us examine Nelson’s rationale for requesting probation for murder. He says that because of heart damage and because he is a former police officer, Chauvin is likely to die at an earlier than average age. Yet, per the U.S. Department of Health and Human Services Office of Minority Health, Blacks are more likely to die at an earlier age than whites. But Black people don’t get leniency in the criminal justice system due to this fact. In fact, the U.S. Sentencing Commission revealed that Black men get longer sentences than white men for the same crimes. If Black people don’t get lighter sentences based on shorter than average life expectancy, why should Chauvin?
Nelson also says Chauvin doesn’t have a criminal history… but why is that? Is it because he never previously committed a crime, or merely that he was never previously charged with one? Chauvin is currently facing federal criminal charges for a 2017 incident in which the government argues he beat a 14-year-old in the head with a flashlight and then knelt on the boy’s neck and back for several minutes even though, like Chauvin’s future murder victim, the boy was handcuffed, prone, and unresistant.
The federal government has only recently indicted Chauvin, but if he had been charged by either the state or the Department of Justice back in 2017, he might, indeed, have a criminal record at this point. Upon investigation, a prosecutor could find that the 18 complaints Chauvin received over the course of his career represent further crimes. And, of course, Chauvin may have harmed others who were too afraid to complain — or who felt, correctly, that doing so would be pointless.
In other words, because Chauvin was allowed to act with impunity, there is good reason to think he has at least one undivulged crime, “unwhipped of justice,” within him — one of the two (the other being violation of Floyd’s civil rights) for which he is now facing federal criminal charges. But because Chauvin may not get convicted until 2021 or 2022 for a crime the government argues occurred in 2017, he can take advantage of the fact that he doesn’t have a prior criminal record. More perversely, the fact that Chauvin was not indicted in 2017 — an indictment that may have led to a conviction that would have prevented him from murdering Floyd — means that Chauvin can argue for leniency for murdering Floyd. This is injustice earning interest, injustice compounding itself.
And it is even more galling when we look at the inverse situation: In 2004, Floyd was sentenced to almost a year in jail for selling $10 worth of drugs. The conviction was entirely due to a police detective who has now been indicted for two charges of felony murder and for tampering with government records. Some of his cases are being thrown out, and there is a movement to get Floyd posthumously pardoned. Thus Floyd, a Black man, was convicted for a crime he may well not have done, while Chauvin, a white police officer, wasn’t even indicted for a crime there’s some reason to think he did do.
Chauvin’s lawyer said that he is unlikely to reoffend. Really? Let me reiterate that Chauvin had 18 complaints filed against him and that the Minnesota attorney general’s office argued that Floyd was at least the seventh person Chauvin knelt on or choked.
For Judge Cahill, now is not the moment for leniency but for Lear. It is time to tell Chauvin, “Tremble, thou wretch.” And it is time for us all to examine the criminal justice system’s dystopian disparities, for such are the true undivulged crimes.
Shannon Prince is a lawyer at Boies Schiller Flexner and a legal commentator.
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