Photo courtesy Erik van Leeuwen
In many ways, the Oscar Pistorius trial has had very little parallels to the American justice system except in the sentencing phase, where Pistorius is asserting white privilege to avoid jail time. Pistorius was found guilty of culpable homicide a parallel to manslaughter in America. He could receive up to 15 years in jail or as little as house arrest or community service. Unlike in America, there is no jury system so the case instead was tried before Judge Thokozile Masipaone, one of the few black judges in South Africa. During the trial, Pistorius cried, sobbed and told how he loved Reeva Steenkamp and would not have killed her. And now during the sentencing phase, entering into day three, the Pistorius defense is asserting what he probably believes to be his rights as a white South African to avoid jail.
Prior to the killing of Reeva Steenkamp, Oscar Pistorius, known as the Blade Runner, for his running ability on artificial prosthetics, fought for the right to be treated as an equal. Prior to the killing of Reeva, Pistorius proclaimed that he did not want special preferential treatment and earned the right to run competitively with nondisabled runners. Ever since the death of Steenkamp, he has been singing a different tune. During the trial, he practically blamed his disability as the reason for his overwhelming fear of intruders into his house on the February night that Steenkamp was killed. He used his lack of lower limbs as the reason he felt vulnerable suspecting burglars in his home. And now that he has been found guilty of a crime which carries a jail sentence, he has been relying on his disability as a way to keep him out of jail. Pistorius never wanted to be treated differently due to his disability until now. And none of the excuses that he has proffered through his defense team should be enough to keep him out of jail.
Since the sentencing hearing, Pistorius’ team and the probation officer hired by the defense has concocted a series of white privilege defenses. A defense witness testified that he would be “broken as a person” if he were sent to jail. The probation officer who testified said he would be subject to violence and highly stressful conditions. A jail is likely a highly stressful condition for anyone. And in most jails, unfortunately there is often violence. As for his disability, jails may not be fully handicap accessible for the blind, hearing impaired or physically disabled, yet that is not a reason to excuse a crime. Jails are not just for the able bodied. Jails and incarceration are for those who have committed a crime which justifies incarceration. Killing a person fits into that category. As his defense team asserts that jail would have no beneficial effect on Pistorius, jails usually do not have a beneficial effect on most of those who are incarcerated.
The prosecution is seeking a lengthy sentence for the killing of Reeva Steenkamp. It is not known how Pistorius’ white privilege defense will work. In South Africa and America, the white wealthy or famous privilege defense seems to work in some cases. In December, 2013, Ethan Couch, a wealthy 16 year old teenager avoided jail for killing 4 people and severely injuring two others, as a result of drunk driving when he asserted what was being called the “affluenza” defense by his psychologist. One man lost both his wife and daughter in the Couch drunk driving collision. Couch received probation after pleading guilty to manslaughter. And Alabama Judge Mark Fuller admitted to domestic violence of his wife by hitting her with a closed fist. He like NFL player Ray Rice received diversion. He will not have to admit guilt and his record will remain clean.
In the U.S. the prison population is over 50% African American and Hispanic males despite the fact that African American men make up roughly 6% of the overall population. And the fact of the high concentration of minorities is not due to more crime being committed. It is due to the inherent prejudicial bias in the criminal justice system. And in South Africa, the overwhelming prisoners in jail are black. And one report states in relationship to whites and jail time, “Owing to the relatively greater incomes of the white and Indian populations and their greater levels of education… it might well be the case that they enjoyed a superior standard of legal representation than did the other two population groups, and could thus avoid jail.” And that speaks volumes for Oscar Pistorius and his chances of getting no jail time for killing Reeva Steenkamp.
Debbie Hines is a trial lawyer in Washington, DC and former felony prosecutor.