Tag Archives: Ferguson

The Chokehold That Is Prosecutorial Discretion

A protest in Grand Central Station in New York after the grand jury’s verdict in the Eric Garner case.

The news yesterday that a second grand jury in two weeks had failed to indict a white police officer for causing the death of an unarmed black man has caused an understandable uproar.  Where should we focus the outrage in a justice system that is failing minorities? Let me suggest one candidate: prosecutorial discretion.

As an assistant federal public defender, I am used to experiencing the fruits of a system designed around the whims of the prosecution. First, what is prosecutorial discretion?  Plenty of literature gives content to this phrase, but it boils down to the idea that a prosecutor can do whatever a prosecutor wants to do, as evidenced by the fact that 97% of all cases in federal court result in guilty pleas prior to, and instead of, a jury trial. The majority of these settlements are the result of plea agreements where the prosecutor, not a judge, decides what charges a defendant should be convicted of, whether or not to require a plea to factors that trigger statutory mandatory minimum sentences, and often sentencing ranges with no input from the judicial branch, let alone a jury of a defendant’s peers. The arcane cruelty of federal criminal laws, particularly in the area of drugs and guns, means that penalties are so severe that most defendants have little choice but to plead guilty. Severe sentencing and over-criminalization combine to make a dangerous cocktail where almost everything is a crime, or multiple crimes.

So what does this have to do with Ferguson?  And now the Staten Island chokehold case?  Without question, the decision of these two grand juries not to indict was because the prosecutors, in their discretion, did not want to indict. As has been detailed elsewhere, when a prosecutor wants an indictment, a prosecutor usually gets an indictment. The fact that both of these grand jury presentments took place over months (instead of hours as is the norm), and involved testimony on behalf of the officers (each police officer testified on his own behalf, again, not the norm) shows just how unique these cases were. And just how little the prosecutors must have wanted to indict.

And why might these prosecutors not have wanted these grand juries to return indictments?  The reason may be legitimate doubts over the culpability of the officers under the laws of excessive force as written. Or because prosecutors have to rely on law enforcement officers every day to investigate cases and make out those cases in court, and, thus, were loath to alienate their usual allies. But we may never know, and we have no right to know under the law.

Prosecutors make decisions not to indict all the time and the only person who might even know about it is the victim, or alleged victim, of some criminal action. No one has a right to prosecution. The recent conversations regarding unprosecuted collegiate sexual assault sparked in part by the controversial Rolling Stone article about my alma mater, the University of Virginia, implicate this fundamental fact. Every victim stands at the whim of the prosecutor to determine whether or not a case even starts down the path of seeking justice from a criminal court.

Bill Stuntz, former Harvard Law professor, described our current system and its disproportionate effects on black Americans well in The Collapse of American Criminal Justice (Harvard, 2011):

As unenforced speed limits delegate power to state troopers patrolling the highways, so too American criminal law delegates power to the prosecutors who enforce it. That discretionary power is exercised differently in poor city neighborhoods than in wealthier urban and suburban communities. Far from hindering such discrimination, current law makes discriminating easy. That sad conclusion has its roots in a sad portion of America’s legal history. When the Fourteenth Amendment’s guarantee of the “equal protection of the laws” was enacted, one of its chief goals was to ensure that criminal law meant one law alike for blacks and whites—that both ex-slaves and ex-slaveowners would be held to the same legal standards, and that crime victims among both groups received roughly the same measure of legal protection. That understanding of equal protection did not survive Reconstruction’s collapse. Today, the equal protection guarantee is all but meaningless when applied to criminal law enforcement, one reason why both drug enforcement and enforcement of laws banning violent felonies are so different in black communities than in white ones.

The Ferguson and Staten Island cases may be targets of our outrage for many reasons, but one should certainly be that prosecutorial discretion has been exposed for what it is—entirely out of our hands.

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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Living With Ferguson

In April 1964, Malcolm X gave what would be one of the best-known speeches of the civil rights era, “The Ballot or the Bullet?” Speaking of the plight of blacks in America, Malcolm X asked an audience at Cory Methodist Church in Cleveland, Ohio, “Where do we go from here? In my little humble way of understanding it, it points either to the ballot or the bullet.”

I have thought a lot about Malcolm X’s proposition since Michael Brown was shot dead in Ferguson, Missouri, not far from where I grew up.

Malcolm X (photo from Wikimedia Commons)

Malcolm X in 1964 by Herman Hiller (photo from Wikimedia Commons)

To this day, Malcom X’s speech is all too often described as a call to violence and little more. But it was actually one of the more cooly pragmatic and tactical arguments of the era. It was as much a call to “the ballot” as it was to “the bullet.” Indeed, based on a simple word count, Malcolm X seemed more interested in the power of the ballot in 1964 than he was in the power of bullet. Unlike the bullet, the ballot offered a straightforward electoral strategy:

These 22 million victims are waking up. Their eyes are coming open. They’re beginning to see what they used to only look at. They’re becoming politically mature. They are realizing that there are new political trends from coast to coast. As they see these new political trends, it’s possible for them to see that every time there’s an election the races are so close that they have to have a recount. They had to recount in Massachusetts to see who was going to be governor, it was so close. It was the same way in Rhode Island, in Minnesota, and in many other parts of the country. And the same with Kennedy and Nixon when they ran for president. It was so close they had to count all over again. Well, what does this mean? It means that when white people are evenly divided, and black people have a bloc of votes of their own, it is left up to them to determine who’s going to sit in the White House and who’s going to be in the dog house.

And so “The Ballot or the Bullet” advocated hitting, straight on, the racist “American system” (Malcolm X’s just phrase) through traditional political means.

To be sure, if the ballot failed, the bullet, he suggested, would be necessary—but as the political equivalent of the ballot, rather than its extreme alternative. In Malcolm X’s speech, both the ballot and the bullet are blunt political technologies capable of changing the “American system.” “The ballot or the bullet. If you’re afraid to use an expression like that, you should get out of the country.”

Of course, there is irony here, but Malcolm X was on to something. Part of American optimism is this belief that the “system” can be changed with the right “inputs,” be they votes or violence. In the recent Ferguson protests, we saw this play out. A story on National Public Radio about white residents of Ferguson featured a man complaining, “There are so many people here that don’t vote, but they think they have the rights to everything in the world. If you don’t vote, you aren’t given all the gifts of our society.” There were also more than a few protestors at Ferguson ready to make hell with guns and fire and so take on the American system of white supremacy.

But here’s the problem with the ballot and the bullet as the only two options in a struggle for justice: What we call “racism,” what we call “oppression,” what we call “segregation,” what we call “white supremacy”—these are all systemic and historic injustices, the large-scale realities of the “American system.” As we are seeing once again in Ferguson, the use of force and the right to vote are part of an American system that has, to date, regularly made people of color second-class citizens, if citizens at all.

Despite an American optimism that encourages us to believe otherwise, neither the ballot nor the bullet is capable of targeting systemic and historic injustices. For both ballots and bullets are themselves components of the system, and—more broadly—of a systemic approach to political problem-solving that operates only in terms of inputs and outputs (where ballots and bullets are inputs supposedly capable of creating new outputs). In fact, in another irony, some white Americans would today agree with Malcolm X, tactically speaking. For some white Americans, “gun rights” have joined “voting rights” to represent the be all and end all of American democracy. If you don’t like it, vote (making sure you show your ID). If your vote is ineffective, go buy a gun.

The problem, however, is not just the ways electoral politics and force are implicated in systemic injustices. It is also one of scale and scope: In approaching systemic and historic injustice, we approach the wrongs of what St. Augustine long ago, in a helpful distinction, referred to as the ills of the  “world.” By the “world,” Augustine meant not “inevitable” or “given,” but rather that accumulation over time and space of injustices—what we would today call systemic and historic injustices. The “civitas,” or polity, Augustine argued, lacks any direct political means by which to address injustices of such scope and scale. As a St. Louis friend recently lamented by email, “It is so disheartening to live in St. Louis, to be immersed in 24–7 coverage of the unrest and outrage in Ferguson, and yet to know that the structural and systemic problems that create the context for incidents like this seem so intractable.”

Malcolm X, in “The Ballot or the Bullet” at least, does not seem all that far off from Augustine’s position. Although he calls for the ballot or the bullet, he does so with pessimism and irony. The sort of equality that seems most within reach is that old “American” one of life for life, tooth for tooth, eye for eye: “It’ll be Molotov cocktails this month, hand grenades next month, and something else next month. It’ll be ballots, or it’ll be bullets. It’ll be liberty, or it’ll be death. The only difference about this kind of death — it’ll be reciprocal.”

The gap between local political solutions and the systemic injustice of history is one that American optimism tends to ignore (to its peril). I have no solutions for bridging the gap, at least not directly. One of the most common solutions in the imaginary of power-hawks and revolutionaries alike has been catastrophe, by which — supposedly — history and system can be overturned and we can begin anew. But that’s a fool’s errand. Catastrophe is not a recipe for a more just order, but instead for the reordering of injustices.

A protestor in Ferguson (photo from Wikimedia Commons)

A protestor in Ferguson, August 15, 2014 (photo from Wikimedia Commons)

But here’s a hopeful paradox to fend off the pessimism at least a little: The ballot and the bullet are component parts of systems of injustice, and yet the ballot and bullet have become, in certain moments, representative acts of public judgment upon the very same systems of injustice in which they participate (and quite often without any intention on the part of the “voter” or “shooter.”)

Ferguson is a case in point. What Officer Darren Wilson did to Michael Brown itself became a representative act of public judgment against blacks on behalf of a white policing system. The arrival of protestors on the streets, who named and decried white supremacy and police violence, also became a representative act of public judgment. In turn, the arrival of police in armored vehicles with combat weapons, representing the policing system not only as predominantly white but also as deeply militarized, became both an act of public judgment on behalf of the system and itself subject to other acts of public judgment . . . not the least in Trooper Ron Johnson’s walking with the protestors, in marked contrast to the tactics of the local police. Far from a mere police “calming tactic,” Johnson’s walk was above all an act of public judgment upon a predominantly white, militarized policing system.

Each of these events was or became a public act, and each an act of judgment. What made Ferguson so remarkable — and what makes it remarkable still — is the succession of such public acts of judgment, seemingly running out of control. This is also what made Ferguson so frightening to so many. But they were, I think, less “out of control” than they were regulated by a system of publicity (a word we need to recover from the publicists) operating independently of (though certainly not entirely apart from) the “Inputs” of America’s racially tilted system. That is, these representative acts of public judgment were meaningful in ways that transcend the unjust system. The world, as the protestor in the photograph above declared, was watching, and that was significant.

Although I am loathe to get into the well-worn business of contrasting Malcolm X with Martin Luther King, Jr., I do think that the particular political virtue of nonviolent tactics by MLK and others was found, and still is found, in their creation of situations conducive to these representative acts of public judgment (which need not always be nonviolent). It is possible, within the sphere of publicity, to offer acts of judgment that “the system” cannot contain or control.

I do not know if the representative acts of public judgment that Ferguson gave us will have systemic effects for the better. That is, I don’t know if they will lead to structural and systemic changes that will mitigate injustices. There is good reason to remain pessimistic. Ferguson did, however, give us a rare public window into the historic racist injustices of the “American system,” and offered its judgments, judgments with which we will have to now live. And living with such judgments, I think, can only be for the better.

Ned O’Gorman, associate professor of communication at the University of Illinois, Urbana-Champaign, is the author of Spirits of the Cold War: Contesting Worldviews in the Classical Age of American Security Strategy and the forthcoming The Iconoclastic Imagination: Image, Catastrophe, and Economy in America since the Kennedy Assassination.

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