The Justice Department recently announced its intention to reopen the Emmett Till case. Although the federal statute of limitations has long since expired, the federal files will be made available to assist with the State of Mississippi’s promised criminal prosecution of perhaps as many as ten new suspects. For almost fifty years the case has stood as an unfortunate marker of unfinished business and was credited with having lent the civil rights movement its most powerful moral rallying point. The two men originally accused were never convicted, despite lots of evidence. Although there were always credible allegations that more than just two people were involved in Till’s abduction and execution, such reports were until now dismissed as “rumor” and needless incitement. It was only after the exhaustive, independent efforts of documentary filmmakers Stanley Nelson and Keith Beauchamp that the case was resurrected.

Reactions to the news of this renewed prosecution have varied from “let sleeping dogs lie”; to a kind of muted cynicism about whether, if it happened today, it would take another fifty years before we got serious about punishing those who did it; to celebration of the potential for “closure”; to delight that the wheels of justice, while grinding exceeding slow, are going round and round just as nicely as you please.

I guess I’m in the camp that believes that justice unreasonably delayed is most likely justice miscarried. At the same time, I recognize that the culture of Mississippi and of the nation has changed significantly for the better as a direct result of this case; the very fact that two African-American filmmakers found a wide audience for their work is testament to that transformation. But after all these years I wonder if “closure” is really what we should be looking for. We would do better to try to utilize the memory–respectfully–so that it does not harden or haunt us in unbidden ways. I think that’s what it means to witness our history, or to never forget. And so I ponder the ingredients of such prolonged inaction about so egregious a wrong.

First, Till’s murder was committed against the backdrop of a two-tiered justice system. The majority of the Deep South felt a kind of rightness in vigilantism. Many regretted the brutality, of course, but still thought that night riders or lynch mobs were somehow “justified” in acting above the law and that “the bad ones” (uppity blacks, Catholics, Jews, wanton women) were beneath it. “Our” laws, the laws of civilized “good people,” were not conceived to “handle” the terrifying threat that disorderly “animals” posed to the gentlemanly foundations of the Southern lifestyle. Hence the perceived necessity for hangings, beatings, burnings, rape, torture, sexual humiliation, mutilation, dismemberment, separation, segregation and general dehumanization. Teaching the barbarians a lesson was dirty business, but always in service to the highest ideals. It was–it remains–a cliché: “Southern justice” meant something other than constitutional due process.

Second, Jim Crow’s shadow justice system permitted unchecked forms of punishment, inventive destructiveness with no accountability. Crimes like Till’s murder were a great big public secret, in that no one could talk fully or frankly about moral limits even if everybody knew all there was to know. Aside from the obvious dangers, there was also a terrible innocence in such a culture of privatized violence. It has always been so: If those over whom we lord are too afraid of saying what they think, we become ignorant, naïve, flattered into arrogance. And arrogance is false shelter; we forget that we are watched–not only by our victims or by the random camera but by our frightened children, and by the traumatized humanity in even the worst of us, a humanity that splits off, deadened and appalled.

Third, the reality of a parallel, ungoverned secondary system of retribution destroys not only the autonomy of the subordinated community but also the very sovereignty of the state or nation in whose behalf the vigilantism is exacted. It corrodes the legitimacy of formal governance structures like the judiciary and renders politics a farce.

These days, lots of people are debating analogies between the brutality at Abu Ghraib or other military prisons and the brutality of the old South. Here’s my thought: If analogies are to be made, let us focus on the consequences of any dual justice system, in any historical context, and as a matter of principle rather than degree. We don’t have to settle whether Lynndie England is exactly the same as Saddam Hussein or the Nazis or Bull Connor. Instead, just as a matter of logical form, let us put the USA Patriot Act next to the US Constitution and consider the deficiencies, the unlimited license of detentions without charge or lawyers or independent observers. Let us consider the state of our own maximum security prisons when we hear our President promise to build the Iraqi people a brand-new, American-style facility on top of Abu Ghraib–“Camp Redemption” some in the Administration propose to rename it. Let us listen to the constant comparisons of Iraq’s citizens to “ghetto dwellers” who must be taught to “take responsibility” for their welfare and wean themselves of dependence on handouts from Uncle Sam. Let us think about the proposed sovereignty giving Iraqis responsibility for every last bit of the chaos, but no veto power over US military action within their borders.

Most important, let us consider how much our own sovereignty is reduced when so many of those who act in our name are part of a global federation of “private contractors”–mercenaries forming the world’s largest private army: a league of soldiers culled from apartheid’s machine, defunct dictatorships and the Soviet Union as well as from America’s own stock of prison wardens, security guards, gun aficionados and militia members. Yes, I know that many are skilled and good-hearted, just making a living while protecting our virtue. But it is the lack of oversight that must concern us. If we worry about free-floating uranium and stateless Islamists, then we must have the good conscience to worry as well about our own loose cannons: these soldiers for hire, or soldiers for fun, or soldiers whose belief systems we have yet to fathom. Our legacy will be written by their actions.