I’ve been reluctant to comment on the Ferguson story thus far, in part because I haven’t been sure what I could add to what’s already been said. And, admittedly, I find it liberating not to have to engage with US race relations on a daily basis (Britain has its own problems, but race plays less of a role when much of the discussion about immigration, for example, has to do with other Europeans).
That said, two things have struck me since the decision of the grand jury not to return an indictment.
The first is that many police forces in the US seem to have lost their way. People talk about the militarisation of the police in terms of increasingly violent methods used to apprehend suspects. But there is a far more disturbing way that policing can become militarised: when police develop an attitude that they are engaged in a war with certain members of the communities they are sworn to serve. Shooting first and asking questions later is an attitude that is justified on the battlefield. But our cities and neighbourhoods aren’t battlefields, and if they are, then we have to figure out a way of dealing with crime in those neighbourhoods that doesn’t involve the police carrying out a military campaign.
Soldiers on a battlefield do not owe the enemy a duty of care, but police officers do have such a duty towards those they seek to arrest. The police act on behalf of the entire community, including its members who commit crimes, and we absolutely cannot have them viewing members of that community as enemies without rights who can be shot on sight.
I’m sure that if we asked any police officer whether it was acceptable to think of people in this way they would say absolutely not. And yet, with anywhere from 400 to 3,000 people killed by police every year, I suspect that subconsciously and operationally many officers do slip into the trap of viewing police actions as military operations, particularly in places, like Ferguson, where other factors like race encourage an us-versus-them mentality.
As with so many of the crime problems in the US, much of the blame for this development can be traced to the decision to wage a ‘war’ on drugs, which has not only brought millions of people into a criminal justice system that hardened them for a life of crime but also encouraged police to think of communities as infiltrated by an ‘enemy’. Rethinking our policy towards illegal drugs is likely to be a prerequisite to rehabilitating the relationship between police and the communities they serve and, in turn, for diffusing some of the race-based animosity between the two in many parts of the US.
The second (less emotional) point is about the function of grand juries. I’ve read a lot of posts by people in the last week objecting to the fact that, in a departure from normal practice, the grand jury in the Ferguson case was presented with exculpatory evidence, including testimony from the accused officer. If grand juries are to serve any useful function, however, what we should be objecting to is the fact that such evidence is normally withheld, not that it was presented in this case.
Grand juries were first formed in 12th-century England to perform the role of community prosector. Judges would travel from town to town (in a ‘circuit’) and, in each place, would swear in (juré) a number of locals, who would then have to tell the judge all of the crimes they knew had been committed since the last time he was there. To protect against the possibility of personal vendettas, a person would only be tried for a crime so reported if a majority of the other jurors agreed.
In the US and the UK until the late 19th century, most criminal actions were private prosecutions; that is, individual members of the public would file criminal charges against the people who had harmed them. Again, to filter out baseless claims, such prosecutions could only proceed after a grand jury had considered the charge and issued an indictment, having found probable cause to believe that the accused committed the crime.
Probable cause is tricky to define, but generally it means a fair probability: something less that 50/50, but more than, say 30%. It is not a high standard, nor should it be given the preliminary nature of the hearing. But, if a grand jury is to serve any purpose at all, it must be given enough information to judge which of those cases have less than a 30% of success and should therefore not be pursued. How can it perform this role if the only evidence it hears is that which supports the prosecution?
Effectively what most grand juries now decide is whether the prosecutor has a prima facie case; i.e., whether there is at least some evidence to satisfy each element of a crime. But a judge can easily do that–it doesn’t require any weighing of the evidence, but is simply a matching exercise between the elements of the offence and the available evidence.
If grand juries are to perform any role at all, they need to be presented with sufficient evidence, both incriminating and exculpatory, to allow them to filter out those cases which are unlikely to succeed. Otherwise we may as well save the hassle and expense and just have public prosectors make charging decisions, as is now the case in every other common law country (including the UK).
Of course in the UK prosecutors aren’t elected. I support the idea of elected prosecutors because I think that prosecutors, in exercising prosecutorial discretion, are making policy decisions which should have political oversight (unlike judges, who should not be making policy decisions and should not be elected). But, in a system with elected prosecutors, having a grand jury to weed out frivolous and vexatious claims can be an important check on prosecutorial power. Prosecutors should be required to give a fair presentation of the evidence on both sides, transcripts of grand jury sessions should be provided after an indictment has been issued, and there should be severe consequences for prosecutors who abuse the grand jury system.
I haven’t followed the legal case against Officer Wilson well enough to have a view on whether the grand jury reached the right conclusion (although if the jurors didn’t think the evidence rose to the minimal level of probable cause it seems unlikely that a different jury would be convinced by it beyond a reasonable doubt, whether or not they should be). But I do think that Ferguson, as well laying bare continuing racial tensions, raises serious questions about the purpose of our criminal justice system and the relationship between it and the communities it is meant to serve.
Racism is almost impossible to attack head-on; you can’t change deep seated prejudice through reasoned argument or physical force. But you can change policies and attitudes that exacerbate racial tensions and entrench racial prejudice—the militarisation of policing and disfunction in our criminal justice system more generally being two examples—and hope that by changing behaviours we can also begin to change attitudes. As C. S. Lewis said:
Do not waste time bothering whether you ‘love’ your neighbour; act as if you did. As soon as we do this we find one of the great secrets. When you are behaving as if you loved someone you will presently come to love him.
We could certainly do with a bit more love and a bit less riot gear.