Ferguson, Race, and Clamoring for True Bills

This reflection was originally posted on November 24, 2014, in conjunction with this.

I believe the grand jury’s decision is worth outrage NOT solely because of the failure to indict. In a perfect world, far fewer grand juries would return indictments than typically do.

The reason why I think this specific case is a problem is because of the generally low standard for returning indictments. Officially, there is a “probable cause” standard—stated in layman’s terms, this means that there’s a reasonable chance that the crime occurred based on the facts as portrayed in a light favorable to the prosecution, and that a trial should be called to determine whether this can be proved beyond a reasonable doubt. In practice, it has become even a lower standard than that—in run-of-the-mill criminal cases without much media coverage, even weak circumstantial evidence or single-witness identifications without anything else have been more than enough to return indictments (and convictions). Most of those run-of-the-mill criminal cases are prosecuted against minorities. (I have, in the two months I’ve been at my job, done work on cases for roughly 25 clients, only one of whom is white. That client was told by a judge that he “isn’t like the other defendants that [she] sees, because [he is] smart.” This sort of thinking is the problem.)

I don’t think that the grand jurors in this case know this. It’s possible that they do, and that this result was the result of straight-up intentional racism. I think that is a pretty unlikely scenario, though. One of the things that points this out to me is the way that the prosecutor framed his statements at the press conference tonight. As an attorney for the “People”, he is supposed to zealously represent the interests of the public and public safety. That means returning indictments for anybody that could be seen as a menace to the public, regardless of the media attention or the posture of the case. However, his statements were all hedging in the direction of the police officer, so much so that he sounded like the defense attorney for the very person he was supposed to be trying to indict.

Even so, I don’t know that the prosecutor is intentionally being racist. However, that may be an even bigger problem. Knowing that you’re being racist and being racist anyway is a problem, but it’s one thing. Not recognizing that your beliefs, your thoughts, or your reactions are racially tinged is maybe even a more difficult thing to try to combat, since racism is generally accepted as bad and people have a tendency to get defensive very quickly about anything. What do you think would have happened if somebody had told the judge two paragraphs up that she was racist for calling the white client the “smart” one? The judge would have denied it, and maybe even have pushed back, citing other things that separated the client from “the other defendants.”

What’s even more difficult to overcome, though, is a system that is set up in such a way that it is going to be biased. Even in a vacuum, prosecutors are often reliant on police to prosecute cases, as they are often the only eyewitnesses to illegal behavior (for example, a drug sale initiated by an undercover police officer is often prosecuted with 2-3 police witnesses and any recovered drugs, without any other evidence offered). How difficult do you think it would be to maintain a good working relationship with police in general if you were trying to prosecute police for what the police might view as doing their job, no matter how misguided that sentiment might be? Now consider that the prosecutor in this case was known for having very close ties to the police. This is just one example of the way that our social and political institutions can fail to deal with problems of discrimination and bias.

In sum, I think the decision is outrageous not because of what it is, but because of the context in which it was made. Although I wouldn’t call the grand jury racist per se, I think the decision was a result of many different things being racially biased. The grand jury itself played a part in it—so did the prosecutor, though, as well as the system in which the prosecutor operates. This is why this is the sort of thing that requires as many people as possible to understand the motivations and the incentives of all the players involved.

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