Do the Ferguson Protestors Really Want Justice?

African Americans in Ferguson, MO are demanding justice over the shooting of Michael Brown. But, a clear-eyed observer might conclude differently: what they really want is vengeance, a public lynching, hauling out Officer Darren Wilson in chains, watching as he pleads for mercy, then asking the crowd to shout out its judgment and guilty verdict announced, dispatching him as gruesomely as possible while the crowd roars its approval. This is hardly a new idea -- recall the festive public guillotining during the French Reign of Terror or mob chants of “to the Wall” in Castro’s Cuba. And, truth be told, I suspect that many non-protestors might be willing to sacrifice Officer Wilson to end the violence.

But, let’s assume that cooler heads prevail and American style justice -- not vengeance -- does triumph. Would this satisfy the Ferguson demonstrators?  

As Yogi Berra once said, making predictions is hard, especially about the future, but let me suggest that dozens of “No justice no Peace” placards aside, the Fergusons rioters do not want American-style justice. Indeed, if American “justice” showed up as per demands, it might precipitate even more rioting and inflammatory rhetoric.

Libraries are filled with treatises on “justice American style” but let me note certain core features and, sad to say, these elements bear scant resemblance to what Ferguson protestors demand.

First, American justice is slow, usually painstakingly slow and this is especially true in high-profile murder cases under close public scrutiny. After all, punishment is not to be decided by ill-informed hot heads. Recall that the O.J. Simpson trial began in June 1994 before ending in October 1995. Between the alleged crime and the verdict, months will pass so as to collect evidence, secure a grand jury indictment, find and interview witnesses, employ lawyers and prepare the defense and prosecution, impanel a jury, hire experts and then, finally, conduct a trial. Even then, matters can easily slow to a crawl as lawyers are fired and new ones hired or motions and counter-motions are filed. Then there are equally time-consuming retrials if juries are unable to reach a verdict. Further add appeals that may entail even more legal preparation and arguments. It is no wonder, then, that convicted criminals are sometimes released immediately after the guilty verdict since their post arrest jail time equals or even exceeds their sentence.    

Justice in America can also be far more complicated than, say, the crowd roaring “kill him for murdering Michael.” Arcane but necessary legal distinctions often baffle non-experts. How many Ferguson protestors could explain the difference if Officer Wilson were charged with voluntary manslaughter, defined as intentional killing in which “the offender had no prior intent to kill, such as a killing that occurs in the ‘heat of passion.’ The circumstances leading to the killing must be the kind that would cause a reasonable person to become emotionally or mentally disturbed” versus second degree murder -- an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion"; or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life? And these are only two of many potential charges.

This is hardly a distinction without a difference and may require hours of boring testimony and splitting legal hairs but it can critically determine the final outcome and punishment. Similar complexities surround the admissibility of evidence, witness credibility, the relevance of past court decisions and sundry other matters whose meaning can baffle ordinary citizens. No doubt, for some, following the path to “justice” may be as bewildering as watching a Chinese opera.

There is also an occasional disjuncture between obvious guilt and a “not guilty” verdict and, of the utmost importance, it is justice given our prized principle of better to free the guilty than punish innocents. The apparent “injustice” might result from inadmissible evidence (e.g., an illegal wiretap), witnesses suddenly refusing to testify (no snitching), lack of a properly drawn search warrant, police failure to apply the Miranda rules, statute of limitations, improperly impaneled juries (e.g., systematic exclusion of blacks), judges giving the jury misleading instructions among countless other flaws, all well-known get-out-of-jail-cards to experienced defense attorneys. How do you explain to angry protestors that Officer Wilson walks because the jury was so deadlocked that the judge and the prosecution doubted that a fair trial in the St. Louis area was impossible and a retrial would be pointless? But that would be justice

Finally, American justice is only about legal violations and while some bad behavior is illegal, much bad behavior, no matter how noxious or offensive, is not a crime. Donald Sterling’s racist rants may outrage millions, but his utterances were not criminal behavior. Thus understood it is a mistake to conflate achieving “justice” with eliminating heavy-handed police tactics, releasing a tape showing Michael Brown stealing a box of cigars, being followed around by suspicious store clerks or, as pontificators such as the New York TimesCharles Blow, would allege, a whole slew of race-related inequalities (also see here). Absent a specific statute, achieving justice is not bringing about some egalitarian Utopia.

Clearly, street protestors cannot be expected to grasp these complexities. Nor is this necessarily a race-related deficiency -- southerners lynched thousands of blacks rather than wait until all the evidence was collected, lawyers appointed, and witnesses called to testify. Mob “justice” is probably the default form of justice throughout history.

Two points. Despite hours spent watching Ferguson on TV and following it in major newspapers, I saw zero about how American justice actually works. Nobody explained that vengeance is not justice and rioting has nothing to do with sifting the evidence to prove innocence or guilt. Some prominent figure could have said, “Listen folks, justice will be done, but not here and months will pass, so we’ll need patience, not more agitation.” A great teaching opportunity was lost and replaced with rhetoric that tacitly conflated disorderly demonstrations with calls for due process. Those in Ferguson should keep in mind that until recently, justice via “race riot” was almost always involved out-of-control whites lynching blacks. If this behavior were to define “American justice” blacks would lose.  Upholding rule of law is in the best interest of minorities and perhaps the legal scholar President Obama should give this lecture.

Second, since the protestor’s version of “justice” (i.e., a lynching) is unlikely to occur, calls for revenge disguised as “justice” will continue to smolder and, if Officer Wilson is not indicted or walks after a long trial, life in Ferguson (and elsewhere) will return to the “burn baby, burn” era of the 1960s, an economic disaster for blacks. And after a half century and trillions in failed efforts, do we now finally know how to solve the “root causes” of what angers the demonstrators? Events in Ferguson puts on display a fundamental divide on the very meaning of “justice” and it is unlikely to vanish. 

African Americans in Ferguson, MO are demanding justice over the shooting of Michael Brown. But, a clear-eyed observer might conclude differently: what they really want is vengeance, a public lynching, hauling out Officer Darren Wilson in chains, watching as he pleads for mercy, then asking the crowd to shout out its judgment and guilty verdict announced, dispatching him as gruesomely as possible while the crowd roars its approval. This is hardly a new idea -- recall the festive public guillotining during the French Reign of Terror or mob chants of “to the Wall” in Castro’s Cuba. And, truth be told, I suspect that many non-protestors might be willing to sacrifice Officer Wilson to end the violence.

But, let’s assume that cooler heads prevail and American style justice -- not vengeance -- does triumph. Would this satisfy the Ferguson demonstrators?  

As Yogi Berra once said, making predictions is hard, especially about the future, but let me suggest that dozens of “No justice no Peace” placards aside, the Fergusons rioters do not want American-style justice. Indeed, if American “justice” showed up as per demands, it might precipitate even more rioting and inflammatory rhetoric.

Libraries are filled with treatises on “justice American style” but let me note certain core features and, sad to say, these elements bear scant resemblance to what Ferguson protestors demand.

First, American justice is slow, usually painstakingly slow and this is especially true in high-profile murder cases under close public scrutiny. After all, punishment is not to be decided by ill-informed hot heads. Recall that the O.J. Simpson trial began in June 1994 before ending in October 1995. Between the alleged crime and the verdict, months will pass so as to collect evidence, secure a grand jury indictment, find and interview witnesses, employ lawyers and prepare the defense and prosecution, impanel a jury, hire experts and then, finally, conduct a trial. Even then, matters can easily slow to a crawl as lawyers are fired and new ones hired or motions and counter-motions are filed. Then there are equally time-consuming retrials if juries are unable to reach a verdict. Further add appeals that may entail even more legal preparation and arguments. It is no wonder, then, that convicted criminals are sometimes released immediately after the guilty verdict since their post arrest jail time equals or even exceeds their sentence.    

Justice in America can also be far more complicated than, say, the crowd roaring “kill him for murdering Michael.” Arcane but necessary legal distinctions often baffle non-experts. How many Ferguson protestors could explain the difference if Officer Wilson were charged with voluntary manslaughter, defined as intentional killing in which “the offender had no prior intent to kill, such as a killing that occurs in the ‘heat of passion.’ The circumstances leading to the killing must be the kind that would cause a reasonable person to become emotionally or mentally disturbed” versus second degree murder -- an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion"; or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life? And these are only two of many potential charges.

This is hardly a distinction without a difference and may require hours of boring testimony and splitting legal hairs but it can critically determine the final outcome and punishment. Similar complexities surround the admissibility of evidence, witness credibility, the relevance of past court decisions and sundry other matters whose meaning can baffle ordinary citizens. No doubt, for some, following the path to “justice” may be as bewildering as watching a Chinese opera.

There is also an occasional disjuncture between obvious guilt and a “not guilty” verdict and, of the utmost importance, it is justice given our prized principle of better to free the guilty than punish innocents. The apparent “injustice” might result from inadmissible evidence (e.g., an illegal wiretap), witnesses suddenly refusing to testify (no snitching), lack of a properly drawn search warrant, police failure to apply the Miranda rules, statute of limitations, improperly impaneled juries (e.g., systematic exclusion of blacks), judges giving the jury misleading instructions among countless other flaws, all well-known get-out-of-jail-cards to experienced defense attorneys. How do you explain to angry protestors that Officer Wilson walks because the jury was so deadlocked that the judge and the prosecution doubted that a fair trial in the St. Louis area was impossible and a retrial would be pointless? But that would be justice

Finally, American justice is only about legal violations and while some bad behavior is illegal, much bad behavior, no matter how noxious or offensive, is not a crime. Donald Sterling’s racist rants may outrage millions, but his utterances were not criminal behavior. Thus understood it is a mistake to conflate achieving “justice” with eliminating heavy-handed police tactics, releasing a tape showing Michael Brown stealing a box of cigars, being followed around by suspicious store clerks or, as pontificators such as the New York TimesCharles Blow, would allege, a whole slew of race-related inequalities (also see here). Absent a specific statute, achieving justice is not bringing about some egalitarian Utopia.

Clearly, street protestors cannot be expected to grasp these complexities. Nor is this necessarily a race-related deficiency -- southerners lynched thousands of blacks rather than wait until all the evidence was collected, lawyers appointed, and witnesses called to testify. Mob “justice” is probably the default form of justice throughout history.

Two points. Despite hours spent watching Ferguson on TV and following it in major newspapers, I saw zero about how American justice actually works. Nobody explained that vengeance is not justice and rioting has nothing to do with sifting the evidence to prove innocence or guilt. Some prominent figure could have said, “Listen folks, justice will be done, but not here and months will pass, so we’ll need patience, not more agitation.” A great teaching opportunity was lost and replaced with rhetoric that tacitly conflated disorderly demonstrations with calls for due process. Those in Ferguson should keep in mind that until recently, justice via “race riot” was almost always involved out-of-control whites lynching blacks. If this behavior were to define “American justice” blacks would lose.  Upholding rule of law is in the best interest of minorities and perhaps the legal scholar President Obama should give this lecture.

Second, since the protestor’s version of “justice” (i.e., a lynching) is unlikely to occur, calls for revenge disguised as “justice” will continue to smolder and, if Officer Wilson is not indicted or walks after a long trial, life in Ferguson (and elsewhere) will return to the “burn baby, burn” era of the 1960s, an economic disaster for blacks. And after a half century and trillions in failed efforts, do we now finally know how to solve the “root causes” of what angers the demonstrators? Events in Ferguson puts on display a fundamental divide on the very meaning of “justice” and it is unlikely to vanish.