The grand jury decisions in Ferguson and New York City have raised important questions about credibility: the credibility of “the system” and those who enforce it, the credibility of witnesses and evidence, and the credibility of those who highlight and interpret the news of these events for the rest of us.
Insofar as we are the ones highlighting and interpreting the news—and in today’s Twitter and Facebook age, a lot more of us are filling those roles—it is also our credibility that is at issue, our imperative to speak truthfully. How should we be thinking and speaking about Ferguson and New York City? We can start with greater care and precision about what we know and what we don’t know.
What We Don’t Know
We don’t know, and we may never know, all of the facts. We will likely never know all of the facts surrounding the death of Michael Brown in Ferguson (though we do at this point know some forensic facts). Sometimes we know more facts. We know something—and perhaps a great deal—about the death of Eric Garner in New York City from what we see on a video that looks utterly damning. But the clarity provided by that video is the exception rather than the rule.
Most of us don’t know the law. The law is often complex and sometimes counterintuitive. Criminal laws start with statutes that are often difficult to interpret or understand. These statutes are themselves qualified or interpreted by judicial decisions. Most people offering their views about the deaths of Michael Brown and Eric Garner have not read or analyzed the statutes and cases that necessarily frame our assessment of facts. Many of those people would lack the relevant legal training to understand them anyway.
Because we don’t know all of the facts, and because many of us don’t know the relevant law, most of us don’t know enough to assess criminal liability. The death of Eric Garner is a rare exception—the video evidence is highly suggestive and seemingly irrefutable even without a more detailed consideration of law and facts. But even here, the law still matters. And even here, many pundits and tweeters and Facebook posters have made erroneous legal conclusions in this case. (For example, contra Charles Barkley, “homicide” is not the same as “murder.”)
What We Do Know
What do we know about the deaths of Michael Brown and Eric Garner, and the larger issues to which they point?
We know that Michael Brown’s death was a homicide. That does not mean that it was a criminally culpable homicide (as so many people were so quick to assert and continue to assert.) In fact, it is entirely possible that Michael Brown’s homicide was legally justified under Missouri law. But as I have argued elsewhere, Missouri’s use-of-force statute was itself disturbingly broad, enabling deadly force even in circumstances that posed little threat to human life. Not all legally justified homicides are morally just. Not all legally justified homicides reflect a morally just society.
We also know that Michael Brown’s death was a violent homicide. It would be hard to characterize the taking of a human life by a barrage of bullets as anything else. The same is true of Eric Garner’s death. It would be hard to characterize the taking of a human life by an unrelenting chokehold as anything else.
We know that too many unarmed black men have died of violent homicides at the hands of police.
We know that some police officers abuse their authority. We know that some police officers kill innocent unarmed people without justification. We know that some of those killings are intentional and some are accidental, but that police officers should be held accountable for all unjustified killings.
We know that most police officers do not abuse their authority. We know that we ask police officers to take great risks and do great things so that we don’t have to. We know that it hurts to be called a murderer or a racist if you aren’t one.
We know that the American criminal justice system is broken. It is broken at the level of policy, enforcement, prosecution, sentencing, confinement, and parole. These deep flaws lead to deep harms, and those harms destroy lives. Not only lives lost, but also those forgotten, forsaken, and abandoned. Not only lifeless bodies, but also shattered dreams, broken families, and crippled neighborhoods. And we know that black Americans bear the brunt of this injustice.
We know that some Americans are blind to this injustice.
We know that there are ways to begin to remedy this blindness. One of them is taking the time to become more educated about the issues. A good place to start is the late William J. Stuntz’s important and accessible book, The Collapse of American Criminal Justice. Stuntz argues that our laws and practices have shifted a tremendous amount of enforcement discretion to prosecutors and the police. One consequence of these shifting practices: 96 percent of federal criminal cases end in guilty pleas, without the benefit of a trial. Stuntz observes that plea negotiations “have become the system’s primary means of judging criminal defendants’ guilt or innocence.”
We know that these structural realities are a long way from “justice.”
We know that pursuing justice requires more than reading, lamenting, writing, and speaking. We know that some Americans of all skin colors are engaged in the hard work of reconciliation: reaching out to neighbors, teaching in challenging public school systems, serving as foster parents, volunteering with literacy programs, staffing inner-city clinics, advocating for children in the legal system, and engaging in myriad other ways in the midst of seemingly overwhelming challenges. We know that meaningful actions can demonstrate the integrity of words.
We know that others have not yet moved past words. And until more of us do, we may never know the truth of Ferguson and New York City.
John Inazu is an associate professor of law at Washington University in St. Louis, where he teaches criminal law and law and religion. He is a visiting faculty fellow at the Institute for Advanced Studies in Culture at the University of Virginia.
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