Looting For "Justice"

Wednesday, June 10, 2015
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Justin Norman

From Ferguson, Missouri, to Baltimore, Maryland, to Cleveland, Ohio, there have been calls for justice—justice for Michael Brown, justice for Freddie Gray, and justice for Timothy Russell and Malissa Williams. All three cities experienced riots and looting in the name of justice. But do the protesters, even those who were respectful of the rights of others, understand what justice really means?

When a grand jury failed to indict Ferguson police officer Darren Wilson, protesters declared that justice had been denied to Michael Brown. When Baltimore City State’s Attorney Marilyn Mosby charged six Baltimore police officers for the death of Mr. Gray, the usually incendiary Rev. Al Sharpton said on MSNBC’s News Nation with Tamron Hall that the charges “vindicate” claims that blacks are being “targeted” by police even though “they have done nothing wrong.” For her part Ms. Mosby stated: “To the people of Baltimore and the demonstrators across America. I heard your call for ‘no justice, no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man.” Cleveland protesters echoed the “no justice, no peace” mantra after police officer Michael Brelo was acquitted of intentional manslaughter.

Has justice been denied to Michael Brown, Timothy Russell, and Malissa Williams? Will Freddie Gray receive justice only if the Baltimore police officers are convicted? How will we know whether Mosby succeeds in her determination to bring justice to Freddie Gray? How does the indictment of the Baltimore officers vindicate widespread claims of police brutality and discrimination as Rev. Sharpton proclaimed?

For the Ferguson protesters, justice required that Wilson be indicted for the murder of Michael Brown, but that would have been only a first step. Had Wilson been indicted and later acquitted by a jury, there is little doubt that Ferguson again would have been rocked by protestors declaring that justice was denied. While protestors and Mr. Sharpton celebrated the charges against the Baltimore officers, they too will declare that justice was denied to Mr. Gray if Ms. Mosby fails to secure convictions. Ms. Mosby has made clear that, in her mind, delivering justice for Mr. Gray means convicting the Baltimore police officers. Despite a careful explanation of his decision, Judge John P. O'Donnell’s acquittal of Cleveland Officer Brelo has been protested as a denial of justice.

None of this makes any sense in the context of the many theories of justice proffered and debated over the centuries. It may be that Freddie Gray is unjustly dead at the hands of the Baltimore police, but we cannot know that without knowing what happened before and after the arrest. If Mosby charged the six officers on the basis of a review of the facts then known, it would be fair to conclude that she believes she can prove that Gray is unjustly dead. But if she charged the officers in response to the protesters’ “no justice, no peace” demand as she stated, her action has nothing to do with justice. Rather it is a response to the mob without regard for the facts surrounding Gray’s death.

In the Ferguson case, the insistence that Michael Brown was denied justice when Darren Wilson was not indicted is similarly unrelated to knowledge of all the relevant facts. Even if it can be demonstrated that grand juries almost never indict police officers, it does not follow that a failure to indict officer Wilson is an injustice to Brown. The only way to assess whether justice is done in a particular case is to know the facts of that case.

Judge O’Donnell’s acquittal of Brelo does not necessarily mean there was no injustice when Timothy Russell and Malissa Williams died after a 22 mile car chase and a hail of bullets from the guns of the Cleveland police, but it does mean that Brelo’s actions were not unjust—at least not if we believe in the rule of law as an essential attribute of justice.

What these three cases share in common is a belief on the part of large numbers of protestors that a history of unfair and unjust treatment of African Americans by police calls for the conviction of individual police officers without regard for their personal guilt or innocence. This is a dangerous belief rooted in a misunderstanding of the idea of justice that risks doing serious injustice to innocent police officers.

There is a legal process for determining facts and law relevant to an alleged crime, and not until that process has run its course can we know what justice requires. In some cases the process has run its course when the prosecutor or grand jury determines that there is insufficient evidence to prove guilt beyond a reasonable doubt. Indeed it would be unjust to the accused for a prosecutor to indict, knowing at the time of the indictment that there is insufficient evidence to convict. In that event, the prosecutor would necessarily be motivated by something other than the facts of the case. Pacifying protesters may bring peace to the streets, but it has nothing to do with justice for alleged victims of police misconduct, while risking injustice to the indicted officers.

Over the centuries there have been many theories of justice that I will categorize as distributive, retributive, compensatory, and procedural. Philosophers might quibble over the suggested categories and the brief definitions that follow, but these will suffice to underscore that the important concept of justice has been misunderstood or misrepresented in much of the reaction to the tragic events in Ferguson, Baltimore, and Cleveland.

Theories of distributive, sometimes called social, justice address the consequences of inequalities in wealth. Some theories assert that no amount of wealth inequality is just—that justice requires absolute equality, even to the extent of compensating for innate inequalities. Other theories posit that wealth disparities occur when the wealth of the least well off is greater than it would be if wealth disparities were reduced or eliminated.

The Ferguson, Baltimore, and Cleveland protestors, along with the many commentators who echoed their calls for justice, may have been motivated by the reality that Michael Brown, Freddie Gray, and Timothy Russell, like most other young black men confronted by the police, were individuals of limited means. But whatever injustice there may be in their economic circumstances can have nothing to do with the justice of their particular encounters with the police. Even assuming it is true that young black men of limited means are treated disproportionately unjustly by the police, those injustices will not be remedied by holding the police responsible where they have behaved justly. And we cannot know whether the police have behaved justly in a particular case without knowing all the facts of that case.

Theories of retributive justice are rooted in the notion that those at fault for harms to others should be made to suffer some counter-balancing harm—an eye for an eye. The point is not to make the victim whole, but to impose on the perpetrator an equivalent or greater harm.

Only if we accept that every police officer is responsible for the conduct of every other police officer could we justify indicting Darren Wilson or the six Baltimore officers pursuant to a theory of retributive justice. Even if Department of Justice investigations find that the Baltimore or Ferguson police departments have a pattern of discriminating against black citizens by racial profiling or other improper means, justice in the cases of Michael Brown and Freddie Gray can only be achieved on the basis of the facts in each case.

Theories of compensatory justice seek to make victims whole, either at the expense of the person at fault or by some other means. Because Anglo-American criminal law has, until recently, treated criminal acts as offenses exclusively against the state, compensatory remedies for victims have been generally limited to the civil law. Thanks to an expanding legal recognition of the rights of victims of crime, compensatory justice is gaining relevance in criminal cases, with compensation coming either from the perpetrator or from earmarked public funds.

But indicting or convicting the police officers in any of these three cases would have nothing to do with compensatory justice. Neither the threat nor imposition of criminal penalties serves to compensate anyone, whether or not the accused or convicted are actually guilty. There is, in the modern law of personal injury, an unfortunate doctrine of “enterprise liability” pursuant to which every business engaged in the same hazardous activity can be held liable for injuries caused by any one of them on the theory that such businesses are likely to cause injury to someone and are economically well-situated to compensate victims without regard for fault. Such delinking of liability from causation and fault may have become an acceptable means for compensating for tortious wrongs, but when applied to criminal law such an approach compensates no one while doing grievous injustice to individuals guilty only of being police officers.

So we are left with procedural or legal justice as the only theory on which the Ferguson, Baltimore and Cleveland protesters might be relying in demanding justice for Michael Brown, Freddie Gray, Timothy Russell, and Malissa Williams. Procedural justice exists when we adhere to the rule of law. When public officials act contrary to established rules or when cases are resolved without full regard for those established rules and the legal expectations that flow from them, there is a denial of justice. Young children understand the concept well, though they usually speak in terms of fairness and they are often creative in their interpretation of the established rules. It is not fair for Johnny to take Suzy’s bike without permission, and it is more unfair for an adult to insist that Johnny be allowed to keep Suzy’s bike, even if only temporarily.

The rule of law is particularly important to criminal matters because of the inevitable reputational costs of accusation and the potentially severe consequences of conviction. We have rules of admissible evidence and a high standard of proof to insure against the injustice of convicting the innocent. That means that the guilty sometimes are acquitted, but there is no injustice to the victim in that event. Because the rules of citizen-police interaction are sometimes unavoidably vague and often subject to pressured interpretation, in cases like those in Ferguson, Baltimore and Cleveland it is particularly important that the legal process run its prescribed course. Until it does, we cannot purport to know whether justice has been served. It is possible that we will conclude that justice has been denied even after the legal process has run its course, but in such a case we will know the facts and can explain where we believe the legal process has failed.

The fact that someone has died at the hands of the police, even if that someone was an unarmed black man, does not mean that justice will be denied unless the police are indicted and convicted. It depends on the facts of the case and the law that applies to the case. We cannot, based on any serious understanding of justice, conclude that Michael Brown suffered an injustice when Darren Wilson was not indicted. Not without knowing all of the facts known to the grand jury.

Nor can we conclude, in the event the Baltimore police officers are acquitted in accordance with the rule of law, that Freddie Gray is denied justice. It is possible that the Baltimore police could be acquitted in contravention of the rule of law, in which case there would be a denial of justice to Freddie Gray, but it is also possible that the Baltimore six have been indicted or could be convicted without strict adherence to established criminal procedures, in which case it is they who will have been denied justice. Until the legal process has run its full course, we have no way of knowing whether procedural justice has been done. It is possible that Freddie Gray’s death is simply a tragedy, of which there are many in life—a tragedy that has nothing to do with justice.

Misrepresentations or misunderstandings of justice are not just a matter of theoretical fastidiousness. Denial of justice is a serious matter, sometimes so serious as to inspire extralegal responses. Although such responses might be justified under the right circumstances, the Ferguson, Baltimore, and Cleveland riots are not among them. In due course, we will know whether justice has been served in Ferguson and Baltimore. In Cleveland, we must accept that justice has been done unless it can be demonstrated that Judge O’Donnell acquitted Officer Brelo contrary to the law. Until then, the only obvious injustices are to those whose businesses were looted and burned by mobs making premature and perhaps unsupportable claims of injustice.