Two Systems Of Justice: One For Police, One For Everyone Else

The grand jury’s decision in Ferguson not to indict Darren Wilson in the death of Michael Brown demonstrates how we have two systems of justice in the United States. I am not referring only to the differences in treatment based upon race. This is clearly a major factor, but as it has already been discussed at length at many sources I am going instead to highlight another aspect of this problem. The system works different for police officers as opposed to anybody else. Needless to say, blacks are at an even further disadvantage in a case involving blacks and the police.

The grand jury system was originally formulated in an attempt to place a check over the power of prosecutors and protect those who should not be prosecuted. Instead grand juries typically give the prosecutor an indictment when desired in the vast majority of cases. The exception is when a police officer is the one being investigated. In these cases the prosecutor’s office often takes the part of the defense. In a typical grand jury case, Darren Wilson’s side of the story would not have been presented as it was in Ferguson.

FiveThirtyEight has some data on grand jury decisions:

Former New York state Chief Judge Sol Wachtler famously remarked that a prosecutor could persuade a grand jury to “indict a ham sandwich.” The data suggests he was barely exaggerating: According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.

Wilson’s case was heard in state court, not federal, so the numbers aren’t directly comparable. Unlike in federal court, most states, including Missouri, allow prosecutors to bring charges via a preliminary hearing in front of a judge instead of through a grand jury indictment. That means many routine cases never go before a grand jury. Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.

“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”

Cases involving police shootings, however, appear to be an exception. As my colleague Reuben Fischer-Baum has written, we don’t have good data on officer-involved killings. But newspaperaccountssuggest, grand juries frequently decline to indict law-enforcement officials. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.

If the grand jury system was changed so that the defense case was routinely heard, there might be benefits to this. However, it is not fair when one group of people receive this benefit but others do not. The system was essentially designed to protect the police and deny justice to victims such as Michael Brown.

Think Progress posted the above video on this topic by Phillip Johnson. This also explains how under normal circumstances a grand jury would have found probable cause for an indictment.

This does not necessarily mean that Darren Wison would have been convicted. There was a tremendous amount of evidence to be examined, some of it conflicting, and is possible that Wison might have ultimately been acquitted in a jury trial where the standard is not just probable cause but evidence of guilt beyond reasonable doubt.  There are legitimate questions to be reviewed as to how much discretion to give to police officers who feel the need to use deadly force in self defense versus the degree to which police should be expected to be able to handle an unarmed attacker without resorting to deadly force. The decision as to whether to indict Wilson should have been made by the same process as would have been used if anyone other than a police officer was the accused, followed by a jury trial to examine all the evidence from both sides.

Update: More Evidence For A Different System Of Justice For The Police

Update II: More Views On The Injustice In Ferguson