Two Baltimore Police officers have now been acquitted in the death of Freddie Gray, including the only officer charged with murder, and the question has shifted as to what prosecutor Marilyn Mosby should do.
The reaction to the latest acquittal has been predictable. As the Washington Post suggested last week, “the criticism that she rushed to charge the six officers without sufficient evidence, if only to limit the growing civil unrest in Baltimore, now looks like a valid one. Prosecutorial decisions should be made based on the evidence and the law, not on how they will play on the streets.”
But that’s not the uniform view. For instance, Lawrence Brown, an Assistant Professor at Morgan State University, writing in the New York Times, argued, “It’s now clear that no one will be held criminally accountable for the death of Freddie Gray. Three trials and two acquittals mean that Freddie Gray somehow cracked his own spine and crushed his own voice box.”
But Professor Joseph Margulies, writing in Justia’s “Verdict,” writes that while “some have also implied that the failure to secure a conviction will mean that justice cannot be done,” he argues “that is emphatically not the case. In Baltimore, as elsewhere, it is high time people recognized that whatever a prosecution might deliver, it is something far less than justice.”
He noted, “It is helpful to recall the events leading to Gray’s death. According to the Baltimore police, Gray made eye contact with an officer and fled. In some communities, running at the sight of the police is not so much evidence of criminal behavior but of rational self-preservation. At the very least, it seems in a free country a person should be able to run to or from anyone she likes. The Supreme Court, however, thinks otherwise and has held that unprovoked flight at the sight of an officer is suspicious and authorizes law enforcement to give chase.”
Professor Margulies argues that the verdicts only mean “that the prosecution has failed three times to prove allegations of criminal wrongdoing. There is a morally significant difference between being innocent of all wrong and not guilty of a crime.”
However, he argues that “the more important dimension of Professor Brown’s reaction, and what it shares with many others, is the idea that the acquittal represents ‘the nullification of justice.’ Brown seems to believe that only by convicting the officers of Gray’s murder can there be justice for him and his family.”
He continues, “Convicting an officer for Gray’s death may lead to his punishment, but is that all we really want? If so, then I don’t really understand the difference between justice and vengeance. I would hope we want something more. I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only—or even the best—way to achieve these goals?”
The professor goes on to note that the idea that “the Baltimore State’s Attorney can or should be the voice of the community” contrasts with the fact, “This is the same office that prosecutes members of the community by the thousands every year, including other people who, like Freddie Gray, fled at the sight of police and were chased down.”
He argues, “[W]hy does the community need the prosecutor to speak for it? The community has its own voice, thank you very much, and does not need Marilyn Mosby to speak on its behalf.”
Instead, the Professor points to ways “we achieve accountability without silencing the community… that do not involve a criminal prosecution.”
He suggests, “Baltimore, in short, could conduct its own truth and reconciliation commission. Then, the community as a whole could assess for itself whether the officers’ conduct was blameworthy, and pass moral judgment as it saw fit. Depending on how the officers presented themselves, the community might also find reason to exercise forgiveness, which is surely an aspect of justice.”
He notes that the officers would have to be made immune from further prosecution, “but the whole objective is to achieve accountability without a criminal case. There are, in short, mechanisms by which accountability can be achieved and the community can register its moral voice without the need to invoke a thoroughly flawed system. Indeed, as it stands now, the decision to invoke the criminal justice system has silenced the community even as it has failed to achieve accountability.”
Professor Margulies concludes, “These ideas are not meant to exhaust the options. Rather, they are meant to stimulate discussion about other ways a community might seek justice. But the larger is point is simply this: Those who would dismantle the carceral state should not be the first to invoke it. If the goal is to achieve accountability, empower the community, and compel lasting change, a prosecution is about the worst tool in our arsenal. The criminal justice system has never been an instrument of justice for the poor and minorities in this country, and there is little evidence it will become one anytime soon. But that does not mean justice cannot be found for tragedies like the death of Freddie Gray. It simply means we must look elsewhere to find it.”
There is merit to the ideas of the professor here. First of all, if we believe that the system of justice is flawed – then why should we look to it as the sole solution here? In fact, given the systemic biases towards the word of police officers over those of citizens, getting a prosecutor to charge and try officers might itself be a victory. But if we believe that the system itself is flawed, then perhaps we should look elsewhere.
Second, it is easy, relatively speaking, to prosecute police officers for transgressions that are not related to an extension of police power. The officer, like the one in West Sacramento, who stalks, uses his color of authority to entice and then abuses that authority to rape women is relatively easy to prosecute. But the line between lawful arrest, excessive force, police misconduct, and criminal conduct is a difficult one to discern, especially in a case like Freddie Gray where the death was at most indirect.
In the end, we need to change the system, and perhaps the best way to do that is not through a criminal proceeding.
For instance, yesterday, the San Diego Union-Tribune editorial board wrote, “As frustrations mount about Freddie Gray’s death at the hands of police in Baltimore, California cities are changing their entire approach to policing.”
“In Los Angeles, police officials have ordered officers to treat homeless people with “compassion and empathy.” In San Francisco, officials have ordered police to use “minimal,” not “reasonable,” force in handling their duties,” they write. “These actions suggest the U.S. is in a new era in which expectations for officer conduct are much, much higher. Unfortunately, in California, the barriers to finding out about police misconduct are so high that details are rarely ever released.”
What needs to be changed is the law itself, rather than finding change within the current laws – which allowed for the proliferation of police misconduct and relies on extraordinary actions of political actors to enforce change.
—David M. Greenwald reporting