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.
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My “progressive” brethren put me in mind of a cat trying to avoid swallowing a pill. It’s time to stop squirming and accept the truth. The public was thrown into an uproar here by lurid rumors now known to have no basis whatsoever in fact. These include the claims that Gray was “folded” and beaten by the arresting officers, subjected to a “rough ride,” etc. It is now reasonably apparent what happened here: Determined to continue his attempts to “rock” the van, after he was shackled, Gray recklessly got to his feet, putting himself in an unstable posture, with his neck flexed, at risk for a catastrophic fall. If his judgment was impaired by the “opiates” mentioned in the medical evidence, that was unknown to the defendants. Given Gray’s theatrical performance as he was hauled to the van, crying out in feigned anguish, it is hardly remarkable if the defendants, as alleged, failed to realize that, somewhere along the way, he had sustained a legitimate injury. And now the prosecution has retreated from the claim that seat-belting detainees during transportation was mandatory. It seems they can’t find any patrol officers to testify that they actually saw amended Policy 1114, making restraints mandatory, before this incident. Instead, they argue that Goodson was criminally unreasonable in exercising the discretion accorded him under General Order K-14. We are given to understand that, once Gray apparently became “docile,” Goodson could safely assume that he would remain so. Is this not absurd? What authority is here relied on for the notion that detainees can be relied on to telegraph the risk that they may bite, butt or spit upon officers attempting to restrain them?
The media should have realized, long before now, that this case does not come trailing clouds of “social justice” glory. Time to accept that bitter, bitter pill.
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Come on now archon41 – imagine it was you being arrested for having a folding knife in your back pocket. Even assuming that it were a genuine 1960s vintage switchblade (and therefore technically illegal) is that truly an arrest-worthy offense? The arrest was needless – just like Eric Garner’s arrest for selling loose cigarettes on a NY city sidewalk. Issuing a summons could have taken care of it. OK, so running unprovoked is what started the police chasing him. It’s like how a dog responds to seeing another creature suddenly run away from it – a predatory response is triggered in the dog who immediately gives chase. Yes, that was Gray’s first mistake. But he quickly surrendered himself to the pursuing officer – and that was probably his second mistake — showing submission, fear, or weakness – because (just like with a mean dog) it triggers further dominance aggression. Arresting the boy for having a knife in his pocket (and there is little chance that the officer genuinely believed it to be illegal) was nothing more than a gesture of dominance agression – pure and simple.
Freddie Gray had every right to be enraged. Angrily kicking the wall while you are handcuffed in back of the transport van is to be expected (along with some very loud foul language). How would any of us “reasonable” people feel in Mr. Gray’s shoes? Freddie Gray’s anger at the police was not an irrational response to their oppressive conduct.
Gray was already in the van – already cuffed – and the van was already on its way to Central Booking. The only reason to stop that van, pull Gray out and shackle his legs before tossing him back in was that the police felt the need to remind this angry, disrespectful, prisoner that they were in charge. It was just another act of dominance aggression. They intended for Gray to be in tremendous physical discomfort – to show him who is boss – that’s all. It’s not like they expected him to get seriously injured — just be in a bit of pain for a while. It’s not aberrant conduct for police nowadays (police often go from zero to taser with very little provocation). That’s what the riots were in response to — not the failure to properly secure a prisoner with a seat-belt.
Did any of us really and truly think these officers had anything to fear from the prosecutor’s “rough-ride without a seat-belt” theory of homicide? — it was obvious nonsense from the start — the prosecutors did not really want to convict these cops – they work hand in hand with the police every day. The first time I heard the contrived media indignation over “nickel rides” I feared that this whole shebang (everything from the media coverage, to the trials, public indignation of the FoP with the state’s atty, and the interlocutory appellate maneuvering) was all just a big show. Misdirection at its best. The powers that be made this a case about not seat-belting prisoners instead of what it should’ve been about: the decision to viciously and needlessly put the boy in handcuffs and leg shackles. THAT’S what precipitated his death. And for what? A pocket knife! Gray had every right to resist. And those officers (plus all the rest) ought to be reminded that everybody values their life and liberty and that the decision to take away Gray’s liberty is what cost him his life. Police, prosecutors, judges and leaders do not show enough respect for the life and liberty of the governed class. And yes, that IS a bitter pill..
I hereby invoke Poe’s law.