“We Need More Ferguson-Style Grand Juries”: A Model For How To End The Over-Incarceration Of African-Americans Today
We need more grand juries like the Ferguson grand jury. In an ironic twist, Ferguson’s grand jury provides a blueprint for a radical civil rights revolution that could help end the worst racial injustice in America today. Here’s why.
Many observers have noted that the grand jury result in Darren Wilson’s case is highly unusual. Federal grand juries indict in more than 99 percent of cases; state grand juries aren’t quite at that level, but still indict in an overwhelming number of cases. The grand jury deck is heavily stacked to favor prosecution. For instance, prosecutors have no obligation to present all of the evidence in a case, just enough evidence to get an indictment. The old adage is that if a prosecutor asked them, a grand jury would indict a ham sandwich.
Other than sandwiches, who are grand juries indicting, and how? They disproportionately indict young African-American men, and they usually do it very quickly. Grand juries often hear dozens of cases in a single day, and may hand down an indictment based on ten minutes or less of testimony. As one news article notes, “Prosecutors present as many as 40 cases a day to grand juries,” who in turn “indict most suspects in less time than it takes to brew a pot of coffee.”
This is why the grand jury in Darren Wilson’s case was so unusual. It isn’t just that the result was out of the ordinary— the process was also unique. The grand jury heard an incredible 70 hours of testimony from 60 witnesses over a three month period. In another unusual move, the grand jury considered not only the basic elements of the crime, but also affirmative defenses. Ashby Jones writes at the Wall Street Journal blog that “It’s not disputed that Ferguson police officer Darren Wilson shot and killed 18-year old Michael Brown on August 9. The question jurors were likely asked to consider went beyond that: whether Mr. Wilson was justified in shooting Mr. Brown.” And in yet another atypical move, prosecutors presented this grand jury not just a cherry-picked case for prosecution but “absolutely everything … Every scrap of paper that we have. Every photograph that was taken.”
This approach should not be condemned; it should be expanded upon. While cases like the Mike Brown and Trayvon Martin killings receive media attention, they aren’t actually representative of the way that most African-American young men interact with the justice system today. Instead, today’s criminal justice system mostly interacts with young Black men by putting them behind bars at an alarming rate. In recent years nearly one million African-Americans have been incarcerated at the federal, state or local levels. As many as one in three Black men born today will spend time incarcerated.
When they do leave prison, these men are largely unemployable and ineligible to vote, and often end up back in the system. This mass incarceration is destroying the Black community — it is, as Michelle Alexander writes, the New Jim Crow. And it depends on grand juries who act as a conveyor belt, quickly funneling tens of thousands of young Black men into prison.
The contrast with the Wilson grand jury is a stunning illustration of the racial double standards in criminal justice. We should undo that double standard by offering similar protections to every young Black man who is arrested in this country. If grand juries across the United States regularly deliberated for twelve weeks rather than twelve minutes, it would become physically impossible to incarcerate a million African-Americans. If every grand jury heard seventy hours of testimony from sixty witnesses over three months, it would mean the end of mass incarceration in America.
Of course, racial double standards have been lived reality throughout American history. But perhaps the sheer visibility of the grand jury in this case will call attention to the problems of how grand juries usually operate. Ironically, the Ferguson grand jury provides a model for how to end the over-incarceration of African-Americans today. I hope that a thousand more grand juries will follow its lead.
By: Kaimipono Wenger, Thomas Jefferson School of Law in San Diego, California; The Daily Beast, November 30, 2014
“Telling My Son About Ferguson”: He Will Soon Be Forced To Live It
My son wants an answer. He is 10 years old, and he wants me to tell him that he doesn’t need to worry. He is a black boy, rather sheltered, and knows little of the world beyond our safe, quiet neighborhood. His eyes are wide and holding my gaze, silently begging me to say: No, sweetheart, you have no need to worry. Most officers are nothing like Officer Wilson. They would not shoot you — or anyone — while you’re unarmed, running away or even toward them.
I am stammering.
For the past few years, I have traveled from coast to coast speaking to just about anyone who will listen about the horrors of our criminal injustice system. I have written and lectured extensively about the wars that have been declared on poor communities of color — the “war on crime” and the “war on drugs” — the militarization of our police forces, the school-to-prison pipeline, the millions stripped of basic civil and human rights, a penal system unprecedented in world history. Yet here I am, on Monday evening, before the announcement about the grand jury’s decision has been made, speechless.
My son wants me to reassure him, and tell him that of course Darren Wilson will go to jail. At 10 years old, he can feel deep in his bones how wrong it was for the police to kill Michael Brown. “There will be a trial, at least — right, Mom?” My son is asking me a simple question, and I know the answer.
As a civil rights lawyer, I know all too well that Officer Wilson will not be going to trial or to jail. The system is legally rigged so that poor people guilty of relatively minor crimes are regularly sentenced to decades behind bars while police officers who kill unarmed black men almost never get charged, much less serve time in prison.
I open my mouth to speak, look into my son’s eyes, and hear myself begin to lie: “Don’t worry, honey, you have nothing to worry about. Nothing like this could ever happen to you.” His face brightens as he tells me that he likes the police, and that he always waves at the cops in our neighborhood and they always wave back. His innocence is radiating from him now; he’s all lit up with relief and gladness that he lives in a world where he can take for granted that the police can be trusted to serve and protect him with a wave and a smile.
My face is flushing red. I am embarrassed that I have lied. And I am angry. I am angry that I have to tell my son that he has reason to worry. I am angry that I have to tell him that I already know Darren Wilson won’t be indicted, because police officers are almost never indicted when they kill unarmed black men. I must tell him now, before he hears it on the school bus or sees it in the news, that many people in Michael Brown’s town will be very angry too — so filled with pain, sadness and rage — that they may react by doing things they shouldn’t, like setting fires or breaking windows or starting fights.
I know I must explain this violence, but not condone it. I must help him see that adults often have trouble managing their pain just like he does. Doesn’t he sometimes lash out and yell at friends or family when he’s hurt or angry? When people have been hurt over and over, and rather than compassion or understanding you’re given lectures about how it’s really all your fault, and that no one needs to make amends, you can lose your mind. We can wind up harming people we care about with words or deeds, people who have done no harm to us.
I begin telling him the truth and his face contorts. The glowing innocence is wiped away as his eyes flash first with fear, then anger. “No!,” he erupts. “There has to be a trial! If you kill an unarmed man, don’t you at least have a trial?”
My son is telling me now that the people in Ferguson should fight back. A minute ago, he was reminiscing about waving to Officer Friendly. Now he wants to riot.
I tell him that sometimes I have those feelings too. But now I feel something greater. I am proud of the thousands of people of all colors who have taken to the streets in nonviolent protest, raising their voices with boldness and courage, capturing the attention and the imagination of the world. They’re building a radical movement for justice, one that would make the freedom fighters who came before them sing from the heavens with joy.
I tell my son, as well as my daughters, as we sit around the dinner table, stories of young activists organizing in Ferguson, some of them not much older than they are. I tell them about the hip-hop artist Tef Poe, who traveled with Michael Brown’s parents to Geneva to testify before a United Nations subcommittee about police militarization and violence. I tell them about activists like Phillip B. Agnew, Tory Russell, Brittany Ferrell and Alexis Templeton, who marched in the streets and endured tear gas while waving signs bearing three words: “Black Lives Matter.”
I’ve met some of these activists, I say. They believe, like you do, that we should be able to live in a world where we trust the police and where all people and all children, no matter what their color or where they came from, are treated with dignity, care, compassion and concern. These courageous young people know the tools of war, violence and revenge will never build a nation of justice. They told me they’re willing to risk their lives, if necessary, so that kids like you can live in a better world.
My son is stirring his mashed potatoes around on his plate. He looks up and says, “Right now, I’m just thinking I don’t want anything like this ever to happen again.”
I’m tempted to tell him that it will happen; in fact, it already has. Several unarmed black men have been shot by the police since Aug. 9, when Michael Brown was killed. But I don’t say another word. It’s much easier telling the truth about race and justice in America to strangers than to my son, who will soon be forced to live it.
By: Michelle Alexander, Op-Ed Contributor, The New York Times, November 26, 2014
“Darren Wilson Saw ‘A Demon.’ What Do You See?”: Michael Brown Was A Very Human Being
“He looked up at me and had the most intense aggressive face.” That’s how police officer Darren Wilson described unarmed 18-year-old Michael Brown. “The only way I can describe it, it looks like a demon.”
Wilson’s testimony convinced the grand jurors and others that the officer was justified in shooting and killing Brown last summer in Ferguson, Mo. Yes, the citizens did a tough job admirably when confronted with mountains of material. But could they also have been affected by research that says black boys as young as 10 are seen as older and guiltier than their white peers?
In an August column “So, black teens who aren’t angels deserve whatever they get?” I wrote, “The shelf life for innocence is short when you are a black male — and there is no room for error.” You don’t get the second chance others might have after an incident of teenage rebellion, such as mouthing off to an authority figure or a more serious scrape. See any number of car-overturning, fire-burning melees after a big sports victory or loss for proof of a double standard.
The answer to the question I posed then has consequences for all Americans because Ferguson, Mo., is about more than one shooting in one town in Middle America. Whatever anyone thinks of the grand jury’s findings, “it” was not a “demon.” Michael Brown was a very human being.
By: Mary C. Curtis, She The People, The Washington Post, November 25, 2014
“Darren Wilson Walks”: No Indictment For Michael Brown’s Killer
Officer Darren Wilson will not face charges for the killing of Michael Brown in Ferguson, Missouri. The news came on Monday evening, when prosecutor Robert McCulloch announced that a twelve-member Grand Jury had declined to deliver an indictment.
The news brought to a close three months of deliberation, but not the controversy over what happened that day—or the national conversation over race and law enforcement that Brown’s killing started.
The August 9 shooting of Brown, who was black, by Wilson, who is white, set off protests and violent confrontations with police that lasted weeks. Behind those protests were long-standing grievances against Ferguson police and its political establishment. Residents of Ferguson, roughly two-thirds of whom are black, said they were routinely mistreated by members of the police department, which is overwhelmingly white. Among the evidence they cited: Statistics showing that African-Americans constituted a disproportionate share of traffic stops (86 percent) last year.
But exactly what happened on the streets of Ferguson that August day has never been clear. Everybody agrees that Wilson stopped Brown and a friend in the middle of the street—and that some kind of altercation followed. But there are different stories about when exactly Wilson shot Brown and under what circumstances. A key question has been whether Wilson felt that Brown posed a threat, to either the officer or to others.
The Grand Jury considered five separate charges, ranging from involuntary manslaughter (which is basically killing because of recklessness, and carries a maximum sentence of seven years) all the way up to first degree murder (which is basically killing with premeditation, and carries a maximum penalty of life). McCulloch, in a prepared statement, said that the Grand Jury became convinced by reams of evidence—including physical evidence and eyewitness testimony—that Wilson had reasonable grounds for shooting.
He added that eyewitness testimony was sometimes contradictory, and that some people changed their stories once confronted with physical evidence that undermined it. McCulloch also chastised media for reporting incomplete or incorrect evidence while the Grand Jury was deliberating.
McCulloch expressed sympathy for the Brown family and recognized that some would not accept the verdict. “I join with Michael Brown’s family,” McCulloch said, “in urging everybody to continue the demonstrations, continue the discussions, and address the problems in constructive rather than destructive way.”
By the time McCulloch made his announcement, most observers expected the Grand Jury to decide as it did. As Yishai Schwartz has explained in these pages, the law in Missouri and other states makes it difficult to convict police officers of murder, at least when the officers claim they acted in self-defense. As Gabriel Chin, a professor at the University of California-Davis, told the New Republic
The Ferguson grand jury’s decision not to indict was no surprise. “A grand jury will indict a ham sandwich,” the saying goes, but that never applied to police. Of course, society requires police to carry guns and orders them to use them when necessary; therefore, they get the benefit of the doubt in close cases. I can’t recall an on-duty police officer being charged for homicide without clear and strong evidence of criminality; ambiguous, unclear, even suspicious circumstances are insufficient.
But critics have worried that McCulloch—who has close ties to the police department and whose father, a former officer, was killed by an African-American—would not pursue charges as vigorously as he could. McCulloch presented the Grand Jury with a wide array of evidence, without pushing them in one direction or the other. He also had Wilson testify in person. These choices were in some ways true to the original idea of a Grand Jury, which is supposed to be an investigative body. But they are relatively uncommon these days, since prosecutors more commonly use Grand Jury proceedings to build a case for indictments—leaving ultimate decisions of guilt and innocence to a trial. According to Chin,
If the prosecutor had wanted to bring charges, he could have proceeded by filing an information charging the officer with an offense, which would have resulted in a preliminary hearing before a judge who would have determined whether probable cause existed. To proceed by grand jury rather than information and preliminary hearing meant that the prosecutor believed charges were unwarranted, but that he wanted the grand jury to at least share responsibility for the decision. Under the circumstances, there is every reason to think that the prosecutor presented all relevant facts; early on, the prosecutor said he expected the testimony and other evidence to be released; if the presentation was biased or half-hearted then there will be consequences.
The prosecutor did err in his statement when he said “The duty of the grand jury is to separate fact from fiction.” The grand jury is obliged to determine whether there is probable cause, not what the actual truth is.
National polls have found a sharp racial divide on the case, with non-whites much more likely to favor indictment. It would have taken the votes of nine grand jurors to make Wilson stand trial and just three of the jurors are African-American. But it’s not clear whether voting broke down along racial lines and, at this point, nobody but the jurors know what evidence was made available—and how convincing it might have been. McCulloch has said he plans to make the evidence public, for the sake of transparency—maybe as soon as tonight.
This is not the end of the legal saga. Wilson is subject to a federal investigation, to see whether he violated Brown’s civil rights. Most experts think he’s unlikely to be charged, as that’s even harder to prove than the direct criminal charges.
But the Ferguson police department is also under investigation, from the Justice Department, and that investigation could very well end in some kind of “consent decree” under which the police changed policies under close federal supervision. It’s happened that way in other jurisdictions where police have come under attack for mistreating racial minorities—and, as Rebecca Leber has noted, many experts think such arrangements have produced better policing and improved community relations.
By: Johnathan Cohn, The New Republic, November 24, 2014
“Inflicting Terror”: In Ferguson, A Militarized Police Force Isn’t Necessary For Suppression
Nearly every night in Ferguson, a group of protesters gathers in front of the police department demanding justice for Michael Brown. The size of the demonstration has varied, depending on people’s availability and on the weather conditions, but the dedication to protesting has remained consistent since Brown’s death.
In these days leading up to the announcement of whether a grand jury has indicted Darren Wilson for killing Brown, everyone is on edge. The uncertainty of when the decision will be released to the public, coupled with Missouri Governor Jay Nixon’s declaration of a state of emergency, has left plans for action up in the air and the quest for justice without answers. But the people still show up to police departments.
The anxiety has only been exacerbated the last few nights in Ferguson, as those protests have been met by a show of force on the part of the Ferguson police department. The night I was there—Wednesday, November 19—there were no more than about forty protesters at any given moment, met with police presence of equal or greater number. Of course, the major difference was that the police stood armed, in riot gear, and the protesters had only their bullhorns, chants and emotion.
It remained relatively calm for a time. The police, lined up as if to block the passageway to the department doors, already unavailable to anyone because of the metal barricade, played a game of cat and mouse, advancing a few feet and backing protesters up, before retreating themselves. Things escalated when during one of their advances they arrested a young man who had shown up to livestream the event.
The police advanced further as the protesters took to the streets, directing traffic away from their action. Protestors ran to what they thought would be a safe space across the street, but a few weren’t lucky enough to make it. At least five people were arrested that night, mostly for unlawful assembly as well as resisting arrest.
Aside from the chanting, there was no provocation of the police on the part of the protesters. There was one instance of an object being thrown, a water bottle, but other protesters quickly handled it: the person responsible, dressed in all black from head-to-toe, including a black mask that obscured their face, was run off of the protest site and heckled as an agitator who was putting the lives of the protesters at risk.
“If the media wasn’t out here, they’d have arrested us all,” one protester remarked.
A similar scene played out on Thursday evening, with the lesson here being that a militarized police force isn’t necessary to inflict terror. The police have proved themselves violent even without the use of tanks and tear gas. The people’s right to assemble peacefully won’t be protected. The Ferguson police department hasn’t taken any of the national or international criticism they have received to heart. And as the announcement of the decision on whether to indict Wilson dangles in some unknown future, the anxiety builds and takes an unknowable psychic toll on the most dedicated protesters.
But their resolve to see this through is strong.
By: Mychal Denzel Smith, The Nation, November 21, 2014
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