No True Justice

Z Magazine, January 2015. Throughout its coverage of the dramas sparked by the police killings of Michael Brown in Ferguson, Missouri, and Eric Garner in New York City—and by the Grand Jury non-indictments of their killers—U.S. corporate media has framed the racial issue at stake as about how police carry out their tasks, how they police. The issue is not minor. How cops do their jobs is a serious matter in an age of militarized, high-tech policing. How those jobs are performed in and around Black communities is a particularly grave question during a time when a Black American (usually a young male) is killed by a (usually white) police officer, security guard, or self-appointed vigilante, on average, once every 28 hours.

Still just as important, but mostly missing from the media coverage and commentary, is the fundamental question of what government authorities police in the U.S. What they police is, among other things, persistent harsh racial segregation and intimately related racial inequality so steep that the median wealth of white U.S. households is 22 times higher than the median wealth of Black U.S. households.

The Children’s Defense Fund (CDF) reports that an astonishing 40 percent of the nation’s Black children are growing up beneath the federal government’s inadequate poverty level. Roughly 1 in 5 Black and 1 in 7 Hispanic children live in “extreme poverty”—at less than half the poverty measure—compared to just more than 1 in 18 White, non-Hispanic children.

This radical race disparity both reflects and feeds racially disparate hyper-incarceration and criminal marking.  More than 40 percent of the nation’s 2.4 million prisoners are Black. One in three Black adult males carries the crippling lifelong stigma (what law Professor Michelle Alexander has famously termed “the New Jim Crow”) of a felony record. Criminal marking is a deadly barrier to employment, housing, education, voting rights and more for the nation’s giant and very disproportionately Black army of “ex-offenders.” It makes “re-integration” next to impossible for many, feeding a vicious circle of poverty, crime, joblessness, family disintegration, jailing, and recidivism.

Contemporary U.S. policing is about keeping Blacks in their place in more ways than one. The St. Louis region (home to Ferguson) is just the seventh most segregated metropolitan region in the U.S. and has a residential “segregation indice” of 72.3, meaning that nearly three-fourths of the region’s Blacks would have to move to be geographically distributed exactly like whites. Such extreme residential segregation has little to do with Black choices. It is a product of class and racial bias in the functioning of real estate markets and home lending and the persistent reluctance of many Caucasians to live in racially mixed communities. As sociologists Douglas Massey and Nancy Denton noted in their important 1998 book American Apartheid: Segregation and the Making of the Underclass, “housing markets…distribute much more than a place to live; they also distribute any good or resource that is correlated with where one lives. Housing markets don’t just distribute dwellings, they also distribute education, employment, safety, insurance rates, services, and wealth in the form of home equity; they also determine the level of exposure to crime and drugs, and the peer groups that one’s children experience.”

By over-concentrating poor and working class Black people in a small number of geographical places, U.S. de facto apartheid reinforces Blacks’ persistently disproportionate presence in the lowest socioeconomic places. That basic underlying concentration of poverty and its many ills (including crime, addiction, and family fragility) is deeply reinforced by the nation’s four-decade campaign of “racially disparate” (racist) mass imprisonment and felony branding, conducted under the cover of a “war on drugs.” The police are policing a persistent racial apartheid and related racial inequality both reflected and reinforced by racist mass incarceration and criminal marking in the neoliberal era. None of this has changed to any significant degree because a small number of Black Americans have moved into visible high places.

“The Rule of Law”

Speaking of technically Black faces in high places, President Obama did not shed much light on the deeper problems beneath the Ferguson turmoil during his remarks while violence flared after St. Louis County Prosecuting Attorney Robert McCulloch’s announcement that the Grand Jury he convened had (as widely predicted) exonerated Brown’s killer, Officer Darren Wilson. “First and foremost,” Obama said on the evening of November 24, 2014, “we are a nation built on the rule of law. And so we need to accept that this decision was the grand jury’s to make.” Dare we mention the United States’ clear origins in genocidal conquest and in Black chattel slavery, which was thoroughly legal in the United States until the Civil War—and then significantly restored in all but name after Reconstruction in the South?

As for the rule of law today, the former Constitutional Law professor Obama might want to have a look at Matt Taibbi’s latest book The Divide: American Injustice in the Age of the Wealth Gap. Taibbi exposes the great class-race division in real world U.S. law, revealing “the fun-house- mirror worlds of the untouchably wealthy and the criminalized poor.” On one hand, we have the elite financial looters who crashed the national and global economy through criminal arrogance and deception.  They destroyed jobs and households on a mass scale and went almost completely unpunished.

On the other hand, Taibbi journeys into “the front lines of the immigrant dragnet; into the newly punitive welfare system which treats its beneficiaries as thieves; and deep inside the stop-and-frisk world, where standing in front of your own home has become an arrestable offense.” Here people are punished with abandon, spending years and often lives behind bars for victimless crimes. They lack the legal resources and official legitimacy that “the 1%” possesses on a giant scale.

How did the rule of law distinguish itself in the specific case of Michael Brown’s killing by Darren Wilson? Police, prosecutors, and other authorities made a travesty of the case from the beginning and through the grand jury’s “no true bill” (no indictment) ruling on Wilson’s behalf. Brown’s body was left lying in the road for four hours. The medical examination was botched. The police insolently released a video of Brown engaged in petty theft prior to his killing, a clear attempt to influence public opinion in their favor—this even as they still refused to release Wilson’s name and race. Protesters in Ferguson after Brown’s killing were met with over-the-top military-style police-state repression that captured headlines around the world, even evoking criticism from mainstream U.S. politicians and media.

Clearly, McCulloch should have removed himself from the Darren Wilson case. His prior involvement and misconduct in an egregious grand jury whitewash of the killing of two unarmed Black men by 2 white police officers in 2000 should have disqualified him from presiding over the Wilson grand jury. As the New York Daily News reported the day after McCulloch announced the “no true bill” judgment, the prosecutor had long and close, familial ties to the police and a problematic history on race and police shootings. By reporter Rich Shapiro’s account:  “Bob McCulloch grew up the son of a cop, in a family full of cops, dreaming that someday he would become a cop himself. ‘I couldn’t become a policeman, so being county prosecutor is the next best thing,’ McCulloch once told the St. Louis Post-Dispatch.”

“He’s been the St. Louis County prosecutor since 1991 and his deep ties with police have rankled area residents for years. Long before he drew scrutiny in the Michael Brown investigation, McCulloch had come under fire for his handling of other police shootings.”

“‘Whether truly justified or not, there’s a perception that he just never will prosecute a police officer,’ said Steven Ryals, a veteran civil rights attorney who lived in Ferguson for 45 years. McCulloch’s reputation as an unabashed defender of the police took root in 2001, 10 years after the Democrat took office. That year, a pair of undercover cops shot and killed two men inside a car in a Jack in the Box parking lot in a hail of 21 bullets. A federal probe, while ruling the shootings were justified, found that the men were unarmed and their car had not moved forward when the officers opened fire. McCulloch declined to prosecute the cops. He further inflamed tensions by referring to the suspects Earl Murray and Ronald Beasley as bums.”

“‘McCulloch has run the office of the prosecuting attorney with an iron glove and has made it quite clear that men in blue will be protected at all costs,’ Randall Cahill, who represented the victims, told the Daily News” (November 25, 2014). No wonder 70,000 Missouri residents signed a petition calling for McCulloch’s recusal after the shooting.

“We Don’t Want to Get Into a Law Class”

Fears that McCulloch would prove biased on the police side were born out by the Grand Jury’s proceedings. Legal experts were taken aback by his handling of the Wilson case. Instead of presenting the grand jury with only the evidence supporting the state’s case—the typical prosecutorial practice—he allowed Officer Wilson to defend himself and offered witness testimony that conflicted with any case for indictment.

To make matters worse, one of McCulloch’s Assistant Prosecutors gave the jurors a copy of an outdated Missouri law stating that police officers had the right to shoot any suspect fleeing arrest. The law was ruled unconstitutional by the U.S. Supreme Court three decades ago. Still, the Grand Jury listened to evidence with the outdated and unconstitutional statute in their minds for more than two months. Just one week before the jury was to rule, a local news outlet discovered the error or more likely the deception. The Assistant Prosecutor, Kathi Alizadeh, made a muddled and belated attempt to correct her “mistake.” On November 21, 2014, three days before the “no true bill” ruling, she instructed the Grand Jury as follows:  “Previously in the very beginning of this process I printed out a statute for you that was, the statute in Missouri for the use of force to affect an arrest. So if you all want to get those out. What we have discovered and we have been going along with this, doing our research, is that the statute in the state of Missouri does not comply with the case law. This doesn’t sound probably unfamiliar with you that the law is codified in the written form in the books and they’re called statutes, but courts interpret those statutes. And so the statute for the use of force to affect an arrest in the state of Missouri does not comply with Missouri supreme, I’m sorry, United States Supreme Court cases. So the statue I gave you, if you want to fold that in half just so that you don’t necessarily rely on that because there is a portion of that that doesn’t comply with the law.”

Alizadeh handed them a new document explaining the current and constitutional law regarding police officers’ use of deadly force. She said this document “does correctly state what the law is on when an officer can use force and when he can use deadly force in affecting an arrest, okay. I don’t want you to get confused and don’t rely on that copy or that print-out of the statute that I’ve given you a long time ago. It is not entirely incorrect or inaccurate, but there is something in it that’s not correct, ignore it totally.”

Seeking clarity, a Grand Jury member asked Alizadeh a simple and basic question: “The Supreme Court, federal court, overrides Missouri statutes?” The Assistant Prosecutor should and could have answered accurately with one word: “yes.” Instead, she opted for continuing to feed juror confusion by saying this: “As far as you need to know, just don’t worry about that.” Another Assistant Prosecutor present, Sheila Whirley, chimed in supportively, saying that “We don’t want to get into a law class.” The disingenuous and arrogant assumption in these replies to the juror’s simple and essential question was that it would have unduly taxed the jurors’ minds to tell them that the Missouri law Alizadeh passed out more than two months prior had been ruled unconstitutional by the Eighth Circuit Court of Appeals and the United States Supreme Court and that these federal court ruling overrode state laws (Lawrence O’Donnell, “Shocking Mistake in Darren Wilson Grand Jury,” MSNBC, November 26, 2014, “Exception to the Grand Jury Rule”).

It’s far from clear that the outcome would have been any different without the “mistake” or deception regarding Missouri law, however. As Ben Casselman noted on the highly esteemed FiveThirtyEight blog, “Grand juries nearly always decide to indict. Or at least, they nearly always do so in cases that don’t involve police officers.” Cases involving police shootings are a great exception to the rule that prosecutors generally get indictments from Grand Juries they convene (the State Island Grand Jury that exonerated Eric Garner’s chokehold killer on December 3rd proved no exception to the exception). Casselman suggests that prosecutorial bias may be a reason: “Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously” (FiveThirtyEight, November 24, 2014). That would appear to be the most likely explanation in the case of Darren Wilson, with the bias in question fueled more intensely than usual by McCulloch’s family background.

“Understand,” Obama said during his comments on the Grand Jury’s verdict, “our police officers put their lives on the line for us every single day. They’ve got a tough job to do to maintain public safety and hold accountable those who break the law.” The president forgot to mention that members of the corporate and financial elite routinely escape accountability and that the police are as involved in protecting private privilege and state power as much as “maintaining public safety.” Cops are often deployed against citizens who try to serve and protect public safety by challenging the power of the privileged few to do things like ruin livable ecology, bust unions, and crash national and global economies.

“There’s never an excuse for violence,” Obama told protestors on the night Darren Wilson was legally freed from charges for killing Mike Brown. If the President believes his comment, why does he order bombings and missile, drone, and Special Forces attacks and other deadly military actions across the world on a regular basis? Why did he secretly extend the U.S. war in Afghanistan and why has he launched a new US war in Iraq and Syria?

“Enormous Progress in Race Relations”

“We need,” Obama added, “to recognize that the situation in Ferguson speaks to broader challenges that we still face as a nation…there are still problems and communities of color aren’t just making these problems up.” True enough. But the only challenges and problems Obama mentioned were the “deep distrust [that] exists between law enforcement and communities of color” and how “the law too often feels as if it is being applied in discriminatory fashion.… Some of this,” Obama added, “is the result of the legacy of racial discrimination in this country. And this is tragic, because nobody needs good policing more than poor communities with higher crime rates.”

There’s that key distinction again—the one between how they police (in a way that breeds mistrust and protest) and what they police: societal and institutional racism.  Obama said he wanted to see change in the former (where he failed, however, to acknowledge that the problem is about active and ongoing racial discrimination, not just “the legacy of racial discrimination”). He had nothing to say about the latter, though he claimed (as usual on the rare occasions when he explicitly discusses racial matters) that, “We have made enormous progress in race relations over the course of the past several decades. I’ve witnessed that in my own life. And to deny that progress I think is to deny America’s capacity for change.”

Have we really made such “enormous progress”? And if one answers no, does that really mean that one denies the country’s capacity for change? For this writer, at least, the answer to both questions is a resounding “no.” The second “no” is also a yes, however. No, the data do not support the claim of enormous racial progress. Yes, the nation can move forward toward racial equality on the basis of an honest appreciation of social and historical reality regarding the limits of racial progress. Indeed, it only on that basis that serious and transformative change can occur.

Bring it Down

Whites were supposed to recoil in horror at a video clip that U.S. corporate “mainstream” media distributed in which Louis Head, Mike Brown’s stepfather, reacted to the announcement of the Grand Jury’s non-indictment by saying loudly and angrily “Burn this motherfucker down, Burn this bitch down!” I am not horrified. Watching the video, one sees Head being human, nothing less and nothing more. Furthermore, he had a point. The American system of savage race and class inequality and abject plutocracy and ecocide needs to be taken down. Let’s take it down. It won’t always be pretty. For what it’s worth, the 1% and its hydrocarbon-addicted profits system are burning this whole planet down, right now. The sooner we shed calls for “order” and respecting authority (including the so-called “rule of law”) in pursuit of what Dr. Martin Luther King, Jr., called “the real issue to be faced—the radical reconstruction of society itself”—the better humanity’s chances for a decent, just, and democratic future are going to be.


Paul Street is a writer living in Iowa City where he marched with 200 others in solidarity with Mike Brown and other victims of U.S. racist police violence.

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By | 2015-01-07T09:56:23+00:00 January 7th, 2015|Articles|