Wednesday, November 26, 2014

On Ferguson. My Very Limited Thoughts.

The events of yesterday:  No indictment for Darren Wilson for the death of Michael Brown.

How to write about that?

We could begin from this end of the funnel (pictured above), the narrow end, the one that released the no-indictment conclusion yesterday.  What happened in the grand jury proceedings?  How do such proceedings usually work and how did this one work?

It looks like this one was pretty different.  Grand juries almost always decide to indict.  The exception is in the case where the accused is a police officer.   Police officers tend to get the benefit of the doubt.

Did Darren Wilson get that benefit?  And if he did, why?

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: 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.
The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.
“The prosecutor in this case didn’t really have a choice about whether he would bring this to a grand jury,” Ben Trachtenberg, a University of Missouri law professor, said of the Brown case. “It’s almost impossible to imagine a prosecutor saying the evidence is so scanty that I’m not even going to bring this before a grand jury.”
What does all this mean?  Here's the problem with writing about legal topics, about events which take place far away.  The writer (me) should ideally understand everything about the laws of the state where Ferguson is located, about the past history of grand juries there, about the local politics, both racial and economic, about how prosecutors work and how they see their roles.  Most importantly, the writer should have all the evidence the grand jury was given, to truly figure out what was happening.

I cannot do any of that properly, and that's why this post is about the dance my own thoughts perform with the serious and important events taking place.  Because of my lack of competence in the required fields I have not said much about Ferguson.  But not saying anything about Ferguson seems off to me.  Hence these musings.

Climb up a bit into the funnel from the narrow end, while still focusing on the grand jury proceedings.  What about that prosecutor, eh?  Did Mr. McCulloch  sound to you like a prosecutor does?  Like someone presenting a case for the grand jury while essentially acting for Michael Brown?  To get justice for his memory and for his family and friends?

Or did he come across as someone rather different from that type of a prosecutor?

First, he refused to step aside in favor of a special prosecutor who could have been appointed by Gov. Jay Nixon of Missouri. He further undermined public confidence by taking a highly unorthodox approach to the grand jury proceeding. Instead of conducting an investigation and then presenting the case and a recommendation of charges to the grand jury, his office shifted its job to the grand jury. It made no recommendation on whether to indict the officer, Darren Wilson, but left it to the jurors to wade through masses of evidence to determine whether there was probable cause to file charges against Officer Wilson for Mr. Brown’s killing.
Under ordinary circumstances, grand jury hearings can be concluded within days. The proceeding in this case lasted an astonishing three months. And since grand jury proceedings are held in secret, the drawn-out process fanned suspicions that Mr. McCulloch was deliberately carrying on a trial out of public view, for the express purpose of exonerating Officer Wilson.
If all this weren’t bad enough, Mr. McCulloch took a reckless approach to announcing the grand jury’s finding. After delaying the announcement all day, he finally made it late in the evening, when darkness had placed law enforcement agencies at a serious disadvantage as they tried to control the angry crowds that had been drawn into the streets by news that the verdict was coming. Mr. McCulloch’s announcement sounded more like a defense of Officer Wilson than a neutral summary of the facts that had led the grand jury to its conclusion.

So you throw all the evidence at the grand jury!  Ordinary people, right, with no legal training?  You don't shift the evidence first, you don't tell the jury which witnesses might be more credible, which witnesses might be the types who  routinely write in confessing for all sorts of crimes and so on?

Whatever the truth about that might be, Mr. McCulloch's summary of the case told us that Michael Brown and his family had nobody to speak for them in those hearings.

What would have been so bad about an actual court case?  Officer Wilson could have used it to prove his innocence (or not), Michael Brown's family would have (at least) had their day in court, and the country, especially its citizens of color, would have observed the machinery of justice working properly.

I find it hard to accept that the case was as clear-cut as the prosecutor implies.  The statement of Darren Wilson sounds very carefully constructed to satisfy the state law rule that officers can only kill under two conditions, one of which is when the officer is afraid for his or her own life.  That's why Wilson describes Brown in such "super-monster" terms*, to make the case for his own fear of death:

“When I grabbed him the only way I can describe it is I felt like a 5-year-old holding onto Hulk Hogan,” Wilson said. “Hulk Hogan, that’s how big he felt and how small I felt just from grasping his arm.”


Wilson said Brown “had the most intense aggressive face. That’s the only way I can describe it, it looks like a demon, that’s how angry he looked.”
And that's why Wilson stated more than once that Brown had his hand inside the waistband of his pants.  We are expected to conclude that Wilson believed Brown had a gun hidden there.  But given that Brown was not armed, why would he have run towards an armed police officer with one hand inside his waistband?

Perhaps he did?  But in any case the statement of officer Wilson should be interpreted within the legal framework his defense was using:  He had to prove that he feared for his life.  Ezra Klein has pointed out several low-probability aspects of his testimony.   Then there's the fact that Wilson was allowed to give it in the first place.  I understand that is rare in grand jury proceedings.

Let's move backwards into the stem of the funnel.  The killing itself happened and then months of protests in Ferguson and elsewhere.

What took place when Michael Brown died?  How can we answer that question when the grand jury proceedings were supposed to clarify it for us?  If I had a month to study all the evidence I might come to some partial conclusions, but given the way things are, my only real conclusion is that something does smell.  For Darren Wilson's story to make sense, we must accept a view of Michael Brown as the Incredible Hulk, someone out of his mind with superhuman or subhuman rage and anger, someone willing to charge, unarmed, an armed police officer.

That is not a completely impossible scenario, but neither is the opposite scenario where Wilson kills an unarmed man, suspected of stealing cigarillos, and where the killing happens for no very good reason at all.

The protests (which have been going on for months) are not only about Michael Brown and his death (including the fact that his dead body was left lying in the street for some time) but about the deaths of young black men in the hands of the police in the US.  The latest of these deaths is of a mere child, the twelve-year-old Tamir E. Rice who was shot by the police while playing in the park with a toy gun (later correction: a pellet gun).

We are now ready to stay a while at the wide part of that funnel.  It's windy up there.  The wind smells of police brutality and racism of at least two types.  The first is the narrower racial aspect of focused policing on black communities, with assertions that those communities get both too much policing (when looking for culprits) and too little (when victims want help).  The second is the wider consequences of institutional history of treating blacks and whites differently in this country, of the way income is divided between racial groups and of the lesser political and economic power of the black minority.

Crime is more common among the poor** and the poor, when facing the legal justice system, tend to be given harsher sentences than the better off, if not for any other reason than the psychological incentives of "in-group" and "out-group" determinations on the justice ladders and because wealthier people can afford better lawyers.

Racial signifiers exacerbate this tendency.   When black men are (subconsciously or not) regarded as potential criminals in the profiling sense, they are more likely to come across harsh treatment by the police.  This is racism of a particular sub-type.  It treats all black young men, whether upstanding citizens or not, on the basis of perceived (whether real or not) group average criminality rates***.  Add to that the plain old-fashioned racism and you get the situation where the average white and average black opinions about the police and the legal system vary enormously:

It is also worth reading a remarkable interview that ran in the Washington Post’s Wonkblog. Mark Peffley and Jon Hurwitz, who wrote Justice in America: The Separate Realities of Blacks and Whites, have the stats to show why “White people believe the justice system is color blind. Black people really don’t.”
The gender gap is nothing compared to this chasm. When asked, for example, if police “care more about crimes against whites than minorities,” the authors found 70 percent of blacks agree, versus only 17 percent of whites. This is stunningly relevant, though it ran in August 2013. The case in question at that time? The shooting death of Trayvon Martin.

The specific racism of profiling interacts with the  racism in the legal justice system  and with income differences, residential segregation and the very minority status of African-Americans.  These interactions (or intersections) are difficult to tease apart in simple ways.  Changing the way the police acts (reducing the militarization of the police, fighting the shooting reflex of some police officers etc.) may help, but it's not enough on its own.****

 For one example of the many strands in that interaction knot, consider this story about how economics affects racial relationships which affect racial segregation which affects economics and so on,  and then consider the role of the police in all this.

I want to end this post noting that I can leave this specific funnel behind.  That's not the case for the African-Americans who are protesting all over the country.  Cab drivers won't drive on when they see me waving for a cab, and I'm not among those who are judged to be criminals because of their race and gender.  The lived experience in this country still differs by race.

That's why you should now go and read Roxane Gay, Brittney Cooper, Ta-Nehisi Coates (from last August) and Adam Serwer (also from last August).  If you haven't done so already.     

*These terms can also be read as plugging into the racist myths about black men as excessively violent and unthinking but physically superior.

**Because one's incentives for, say, stealing, are much greater when there's no money, and because poverty creates larger life stresses which are more likely to result in violent reactions.

***My knowledge of the role of race in crime, policing and the criminal legal justice system is limited when it comes to studies.  This compilation (pp 9-22) seems to provide a good summary of what researchers knew by 2007 when it came out.  It discusses differences in sentencing rates, including that of death penalty, and addresses the question of how even small racial differences at each stage of the process may result in large final differences between black and white defendants.

It also provides an overview of early studies, the studies after that and the most recent studies (in 2007), because different study cohorts had different methodological problems which partly drove their findings.  Note that it's important to compare like with like in, say, the sentencing process.  That means comparing individuals who stand accused for very similar crimes.

****As I've written before, my belief is that we need to tackle schools, jobs and the way people accumulate funds more directly.  There are reasons for the finding that schools in minority areas are poorer and have more trouble keeping good teachers, just as there are reasons why the accumulation of inheritable wealth is so much more difficult for African-Americans than it is for whites.  Many of those reasons lie in the race history of this country, many are part of the institutions, but some of them we could solve pretty easily (stop funding schools from local property taxes which seriously handicaps poor areas).  Others (such as the creation of family investments for black and Hispanic families) is trickier but quite doable.

Until we address the institutional problems we are going to meet the problems Ferguson revealed again and again.