The shameful mockery of judicial process that has transpired in Ferguson, Missouri, is widely viewed as a matter of racial politics. Of course, in one sense, that’s right: Race underlies enormous and well-documented inequities in the U.S. criminal justice system. But in another way, it’s a pity, because this system now borders on the tyrannical, and ought to scare all Americans, regardless of skin color.
I don’t think it’s much of an exaggeration to say that the lesson from Ferguson is that, in the United States, if you get into an altercation with a police officer, he’s within his rights to kill you. The fact you are unarmed when he shoots you six times, including twice in the head, doesn’t even rise to the “probable cause” required to put the officer on trial. For a country that so prides itself on liberty and the rule of law, this state of affairs is astonishing.
I’m an immigrant and a born-again admirer of Americans and their country. But I’m driven to conclude that the U.S. is a nation too much in love with its judicial rituals to care very much about justice. It mistakes elaborate yet unthinking obeisance to these processes – the more arcane the better – as dedication to the cause of liberty under the law. It’s really the opposite.
I’ve written about the U.S. justice system before, calling it a national disgrace. Previously I dwelt on plea bargains (that is, on the de facto abolition of trial by jury, and the prosecutorial abuses this enables), mandatory minimum sentences, the endless proliferation of law-enforcement agencies, and the ever-widening scope of conduct defined as criminal. (For some reason I forgot to mention civil forfeiture.) Now in Ferguson we have a brutal demonstration of the impunity of police power.
The grand jury is an absurd anachronism even under normal circumstances. As Noah Feldman explains, its historical rationale – to hold prosecutors to account – has long been wholly subverted. But Ferguson provides a twist on the familiar fact that grand juries now exist mainly to carry out the prosecutor’s instructions. In this case, the prosecutors actually did not want an indictment, and as good as told the grand jury not to hand one down. Read Officer Wilson’s testimony, and see how the prosecutors walked him through his defense.
The prosecutors got the result they wanted – no indictment – without the inconvenience of having to explain their decision not to prosecute. It was an elaborate evasion of responsibility, one of many that the system provides for. And if that weren’t bad enough, the process was allowed to drag on for months, with grand jurors meeting now and then, in secret, to consider all the exculpatory material laid before them – while the community and the country wished above all for a clear account of the evidence and a prompt determination.
A jury may well have found Wilson innocent. Much of the evidence, so far as one can tell, leans in his favor. But there should unquestionably have been a trial. If you ask me, probable cause to indict him for unlawful killing resided in the single word “unarmed” – and that’s to say nothing of the conflicting testimony about whether an already wounded Michael Brown was about to attack Wilson when the fatal shots were fired.
The larger issue – and in this system I see no way to address it – is that in cases such as these, the law- enforcement complex is judging its own conduct. Police and prosecutors seem to get bigger guns and more powers every time policymakers turn their attention to the subject; the trend never seems to go the other way. With this growing and potentially tyrannical power goes the vital necessity of ensuring that officers of the law are held properly to account. And they aren’t. It’s as simple as that.
Clive Crook is a Bloomberg View columnist and a member of the Bloomberg View editorial board.