In the Vancouver Stanley Cup riots, a lot of the decisions to charge/convict young, affluent, white people were made on the basis of participation in the riot. Even minor acts like throwing something or filming or cheering were considered to be participating in the riot.

Mostly because it egged others on. Looters, people who set cars on fire, those who damaged property... they all received heavy duty sentences.

The riots here were stupid. They were over a hockey game. But privilege and race played a role too. One participant from a wealthy background was able to hire excellent counsel and avoid a criminal record.

She had the means to pay restitution, set up presentations to high school students, and hire a phychiatrist to prepare a report. http://canlii.ca/t/fzqls  And so her privilege gave her a better outcome than most.

Another case where a discharge was granted involved a young musician from a stable upbringing. http://canlii.ca/t/g0c69  Again, able to retain excellent counsel due to his position in society. And obtained a good outcome.

This past week, we saw and and continue to see, the destruction of many US cities. But we also saw and continue to see a fight that is literally life or death and thousands of people joining that fight to make sure the world knows that #BlackLivesMatter .

I fear that in the aftermath of this, those two things won’t be separated in the justice system.

The Stanley Cup Riots were stupid. There was no reason but alcohol, mob mindset, selfishness, and stupidity for people to have participated.

A lot of that is true of the rioting in the US. It doesn’t advance the cause of #BlackLivesMatter to have a dozen white kids break into a Louis Vuitton and raid purses. It doesn’t advance the fight for racial equality to loot a Nordstrom in Downtown Seattle.

But there are extremely legitimate protests happening and extremely important acts of civil disobedience. Arguably, even the burning of civic buildings could be considered part of this. The anger is with the state, it’s aggression against people of colour and it’s indifference.

I’ll leave that argument for a US lawyer and a jury.

My concern is this: when this is all over, will the justice system, prosecutors, judges, and public defenders, find that bright or even blurry line between rioting for riot’s sake and rioting for social change when people are at the end of their rope?

This is a system that has and continues to repeatedly fail people of colour. It is a system that has repeatedly said through its actions that Black Lives Do Not Matter. And I don’t see this situation changing.

Call me cynical, but I suspect the white kids running away with purses and trinkets will have better outcomes than the BIPOC who are merely standing in the street after the curfew, yelling literally for their lives.

So, America, I see you. I see places I love being torched and looted and smashed. It pains me too. But nothing is going to change if you and your justice system don’t treat people and their actions very carefully after this is over.

For public defenders, that means not pumping and dumping.

For prosecutors, that means not overcharging Black people while undercharging white people. That means not offering light plea deals to light-coloured people.

For private defence counsel, that means stepping up pro bono (as many of you already are doing) to represent BIPOC charged or arrested for rioting when they are protesting injustice.

For judges, that means remembering that the US Constitution and history permits acts of civil unrest, and remembering that justice has to be blind to the defendant’s skin colour when imposing sentence or deciding to convict. Not associating BIPOC - even subconsciously- with guilt

For police, that means critical thinking about who to arrest and why. That means resisting the urge - likely rooted in fear - to violently arrest people of colour.

Please, America, learn from your past and get this right. Don’t come for the people who have already had too much that they can’t take it anymore. Come for those causing those people the trouble right now. The ones who deserve it.