Malo periculosam, libertatem quam quietam servitutem.



November 2014

Case for Criminal Justice Reform Goes Well Beyond Ferguson

Written by , Posted in The Courts, Criminal Justice & Tort

Last night’s announcement that Officer Darren Wilson would not be charged in the shooting of Michael Brown has been followed by violent riots in Ferguson, as well as more peaceful demonstrations throughout the nation. Opinion among the commentary class has unsurprisingly polarized and cleaved along traditional lines, with the left all in on identity politics and the right firmly entrenched in a law and order mentality. Both, I think, are missing the significance of the events taking place.

First, I want to make clear that the looting, destruction and violence taking place in Ferguson should not and cannot be excused. The responsibility for these crimes rests entirely with the individuals committing them, and in an ideal world they would be held firmly accountable for their actions.

Second, I think the specific facts of the incident in question must be separated from the broader social and policy questions. On the facts, I’ll just say that I think the overall outcome that Officer Wilson will not be criminally punished is probably correct, though the standard for grand jury indictment is typically so low that allowing a trial would have been acceptable, even welcome, under the circumstances.

The evidence suggests that officer Wilson was indeed attacked inside his vehicle and that, at some point, Brown disengaged and Wilson pursued. The crux of the case is whether Brown was surrendering or turning to fight at the time he was shot. Perhaps no one knows with absolute certainty whether the shooting was unavoidable, not even Wilson, but the forensic evidence from my understanding is consistent with Wilson’s story, and most of the evidence ambiguous to the point that Wilson would have most likely been acquitted, and rightly so according to the high standards we ought to require for actual conviction.

Regardless, the grand jury verdict has not settled the discussion. While the divisive voices of identity politics are wrong to break this episode entirely down to that of a racial injustice, so too are their critics who see in Ferguson’s aftermath only mindless riots and a need for the restoration of order through force and escalation.

That the right decision was most likely reached in the case doesn’t change the fact that, as Walter Olsen says, “our system for dealing with police use of deadly force is broken.” Illustrating the point, consider the typical outcome for a grand jury. The old saw is that a good prosecutor can get a grand jury to indict a ham sandwich, and in federal cases (where data is available), grand juries opt to indict 99.99 percent of the time. The single variable that turns the statistic completely around is when a police officer is the potential defendant. Under those circumstances grand juries almost never indict. Possible explanations include excessive deference on part of jurors to police, or disinterest on the part of prosecutors at potentially angering the very police upon which their profession relies on having good relations. In either case, the number of incidents of police misconduct that go unpunished poses a serious problem.

We are seeing the consequence of that problem play out now. The communities that most often come into contact with the police – poor, urban, and minority – trust them the least. This not only makes policing those communities more difficult, but when tensions reach a high enough level it can boil over into social unrest and violence. Simply put, if the police were more believable, and public perceptions generally indicated faith in the ability of the criminal justice system to punish police misconduct, what’s happening in Ferguson right now would not be occurring.

Because the thin blue line works more often than not to protect incompetent, corrupt or malicious officers, broad swaths of the public simply do not trust the system to return a just verdict, even in a case such as this where the outcome was seemingly appropriate. That’s a problem that requires serious institutional changes both in terms of what the law says, such as ending the Drug War, and how it is enforced, including reversing the militarization of police forces, ending practices such a civil asset forfeiture that pit the interests of police against the public, building better relations between departments and the communities they serve, and, perhaps most importantly, consistently and transparently punishing officers who break the law. Until these things are done, we can expect what has occurred in Ferguson to happen again and again.