Last week, a Baltimore jury acquitted another officer charged in connection with the death of Freddie Gray. Three different prosecutions have now ended in two acquittals and one hung jury, and no officer has yet been convicted. Three more trials are pending, but the evidence of criminal intent is no better in the remaining cases than it was in those that have concluded, and thus no more likely to end in a conviction. Some have suggested that the prosecutor, State’s Attorney Marilyn Mosby, should take the hint and drop the remaining charges.
Sadly, some have also implied that the failure to secure a conviction will mean that justice cannot be done, as though the former were essential to the latter. But that is emphatically not the case. In Baltimore, as elsewhere, it is high time people recognized that whatever a prosecution might deliver, it is something far less than justice.
It is helpful to recall the events leading to Gray’s death. According to the Baltimore police, Gray made eye contact with an officer and fled. In some communities, running at the sight of the police is not so much evidence of criminal behavior but of rational self-preservation. At the very least, it seems in a free country a person should be able to run to or from anyone she likes. The Supreme Court, however, thinks otherwise and has held that unprovoked flight at the sight of an officer is suspicious and authorizes law enforcement to give chase. Two Baltimore officers ran after Gray, who voluntarily surrendered within seconds. The officers patted Gray down for weapons and discovered a small folding knife in his pocket.
The officers arrested Gray for possession of a switchblade. (The prosecutors have said that Gray’s knife was not a switchblade and that its possession was not a crime, making his arrest unlawful.) He was placed face down on the ground while police waited for a transport van to take him to central booking. In the van, Gray was handcuffed behind his back and restrained at his feet. He was not, however, wearing a seat belt or otherwise secured to the van. On the way to booking, he suffered the spinal cord injuries that proved fatal.
The reaction to the latest acquittal has been predictable. Writing in the New York Times, for instance, Lawrence Brown, an Assistant Professor at Morgan State University, said that “three trials and two acquittals mean that Freddie Gray somehow cracked his own spine and crushed his own voice box.” Of course Professor Brown knows full well that the verdicts mean no such thing; all they mean is that the prosecution has failed three times to prove allegations of criminal wrongdoing. There is a morally significant difference between being innocent of all wrong and not guilty of a crime. The officers in this case may be the latter, but that does not make them the former, a difference understood by anyone who suspects O.J. Simpson killed his wife.
But the more important dimension of Professor Brown’s reaction, and what it shares with many others, is the idea that the acquittal represents “the nullification of justice.” Brown seems to believe that only by convicting the officers of Gray’s murder can there be justice for him and his family. Justice, in other words, requires that we invoke and successfully deploy the very same system that, as Professor Brown likely knows, systematically favors the officers who caused Gray’s death. And Professor Brown’s view is hardly unusual. For example, Ms. Mosby, the State’s Attorney, urged protesters in Baltimore to remain peaceful after Gray’s death so that she could “deliver justice on behalf of Freddie Gray.” In the carceral state, we have developed such a crabbed view of justice that we imagine it as nothing more than a criminal conviction.
Convicting an officer for Gray’s death may lead to his punishment, but is that all we really want? If so, then I don’t really understand the difference between justice and vengeance. I would hope we want something more. I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only—or even the best—way to achieve these goals?
Accountability implies a moral reckoning, a means by which society voices its judgment and condemns what has happened. A conviction is certainly a form of social condemnation, but as I have argued elsewhere, in a criminal case, the community speaks indirectly at best. It is only in the most strained sense of the word that a prosecutor can say after a conviction that “the community has spoken.” In any case, why do we think the Baltimore State’s Attorney can or should be the voice of the community? This is the same office that prosecutes members of the community by the thousands every year, including other people who, like Freddie Gray, fled at the sight of police and were chased down. And why does the community need the prosecutor to speak for it? The community has its own voice, thank you very much, and does not need Marilyn Mosby to speak on its behalf.
So how might we achieve accountability without silencing the community? I can think of a number of ways that do not involve a criminal prosecution. The Baltimore City Council, for instance, could order an investigation into Gray’s death, as could the Maryland legislature. They could subpoena the officers and compel them to testify about their conduct, under oath and without the restraints imposed by a criminal case. Baltimore, in short, could conduct its own truth and reconciliation commission. Then, the community as a whole could assess for itself whether the officers’ conduct was blameworthy, and pass moral judgment as it saw fit. Depending on how the officers presented themselves, the community might also find reason to exercise forgiveness, which is surely an aspect of justice.
Of course, the officers would have to be immunized, and their testimony could not be used against them in a criminal case unless they perjured themselves, but the whole objective is to achieve accountability without a criminal case. There are, in short, mechanisms by which accountability can be achieved and the community can register its moral voice without the need to invoke a thoroughly flawed system. Indeed, as it stands now, the decision to invoke the criminal justice system has silenced the community even as it has failed to achieve accountability.
There are even more options for achieving lasting change. For example, the entire event started because Baltimore police officers chased Freddie Gray for the apparently unpardonable offense of running away when he saw them. While the Supreme Court has held that pursuit in these circumstances does not violate the Fourth Amendment, that does not preclude the Maryland legislature from passing a state law that prevents police from pursuing a person based on nothing more than unprovoked flight. If the state really wants to insist that a citizen be pursued and stopped by the police only if they reasonably believe she has committed a particular crime, it can pass a statute to that effect. And if it refuses, specific legislators can be held accountable by the political process for the failure to act.
And there is yet another option. If the City of Baltimore genuinely wants to prevent deaths like that of Freddie Gray, it can create a simple rule: If, after notice and hearing, an independent board determines that a suspect died while in the custody of particular police officers, the suspect’s death is prima facie evidence of negligence on the part of those officers, who shall be fired unless they can rebut the case by proving the suspect’s death was either self-inflicted or the result of the lawful use of force.
In other words, in this administrative proceeding, the burden shifts to the officers to prove they did not act wrongly, rather than, as in the criminal case, forcing the prosecutor to prove they did. If officers believe their job is truly on the line, they will take care to ensure the next Freddie Gray is handled safely. That should not be too much to ask of our public servants.
These ideas are not meant to exhaust the options. Rather, they are meant to stimulate discussion about other ways a community might seek justice. But the larger is point is simply this: Those who would dismantle the carceral state should not be the first to invoke it. If the goal is to achieve accountability, empower the community, and compel lasting change, a prosecution is about the worst tool in our arsenal. The criminal justice system has never been an instrument of justice for the poor and minorities in this country, and there is little evidence it will become one anytime soon. But that does not mean justice cannot be found for tragedies like the death of Freddie Gray. It simply means we must look elsewhere to find it.