It's Not the Police, It's the Process

December 31, 2014

The widespread protests building across the United States regarding the deaths of the unarmed Michael Brown, Eric Garner and 12-year old Tamir Rice are about much more than their tragic deaths due to excessive use of force; it's about the public's distrust and lack of confidence when our criminal justice system processes are perverted to benefit a person of a certain class or affiliation. American citizens by the name of Darren Wilson and Dan Pateleo killed another person and it should not matter that they were police officers. The prosecutor should conduct the grand jury process in the same way he does for any other citizen when something like this occurs.  That's not to say the current grand jury process is in any way a fair process but prosecutors should not show favoritism in how they conduct those proceedings.  An intelligent public has observed prosecutors intentionally abuse and manipulate the grand jury process to protect a citizen with the title of police officer from being indicted.  To exacerbate the issue, prosecutors then get on television and disingenuously shift their failure to indict to the citizens of the grand jury, making them the "scapegoat" and "fall guy" for their abuse of the criminal justice process.  It reminds me of Pontius Pilate in the Bible who behaved in similar fashion when he washed his hands of his decision to send Jesus to be crucified and shifted the responsibility to the people to justify his actions. 

 

To add insult to injury the media tells us the people to respect a visibly illegitimate grand jury process as if the public lacks the common sense and intelligence to judge the abuse of process they are personally witnessing. USA Today said the grand jury's decision "deserves to be met with great deference" because "unlike everyone else with an opinion," the 12 jurors considered every bit of evidence and concluded that "the death of Michael Brown was a tragedy, but not a crime."  The Wall Street Journal then pays undeserved homage to Ferguson prosecutor Robert McCullough by saying that "the transparency of the process was "a credit to local officials."  The public outrage we are seeing from the perversion of the criminal justice system is a natural reaction and was discussed by the United States Supreme Court.

 

The Supreme Court of the United States (SCOTUS) in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), discussed the natural reactions of communities to respond with outrage and protests when they observe perversion of the criminal justice system. The Court observed the following:

 

"[P]eople sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.

 

When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.  Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "communities" on our frontiers.  "The accusation and conviction, or acquittal, as much perhaps as the execution of punishment, “operate[e]” to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.' "

 

Civilized societies draw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from peoples’ consciousness the fundamental, natural yearning to see justice done-or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." It is not enough to say that results alone will satiate the natural community desire for "satisfaction."  A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted.  To work effectively, it is important that society's criminal process "satisfy the appearance of justice,”

 

An important observation from the Richmond opinion is that "the means used to achieve justice must have the support derived from public acceptance of both the process and the results."  It is hard for the public to accept that excessive force was not used when unarmed citizens are killed by police officers with a gun or choked to death with a chokehold that is prohibited by police policy and the man tells the police officer he can't breathe 11 times.  The way Brown and Garner died shocked the public conscience and they turned to the criminal justice system to satisfy their need for justice but were disappointed and disillusioned by no indictment.  The public observed 1) a criminal justice process that functions in the dark, 2) a prosecutor depart from his customary actions and convene a special grand jury process for the police officer, and 3) the result of no indictment. The dissatisfied public reacts with outrage, protests and even vengeance because their yearning for justice or retribution hasn't been satisfied. They see perversion of the criminal justice process and an unequal application of the law. They do not accept how the grand jury process was conducted or the result. The criminal justice process is ineffective and illegitimate because it did not satisfy the appearance of justice.

 

 

 

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