Failed Solutions

By Henry Burbank

In the wake of the grand jury rulings in Ferguson and Staten Island, many around the country are suggesting potential courses of action to prevent racially motivated police killings from happening again. The Huffington Post suggests that addressing educational inequities and promoting the study of U.S. History and Civics will help solve the problem, while Attorney General Eric Holder believes that launching a civil rights investigation into the cases will yield positive results. On the ground, the NAACP is calling for the firing of the Ferguson police chief and the addition of stricter laws against racial profiling at both the state and federal levels. While these ideas strike at the heart of what happened to Michael Brown and Eric Garner, they are too broad in scope and too focused on long-term goals to have a sizeable impact in the near future. I do not wish to criticize activists, disparage the ideas of those listed above, or insist that the actions of Darren Wilson or Daniel Pantaleo had nothing to do with race. However, I do believe that there are tangible government actions that can reduce the likelihood of grand jury decisions such as these in the future.

The most obvious reason the grand juries made their decisions was a lack of definitive physical evidence and an overwhelming reliance on an often conflicting witness testimony.

The first step is to explain why the grand juries made their decisions. Despite their secretive nature, the evidence released by St. Louis County Prosecutor Bob McCulloch can give us some explanation, at least in the case of Michael Brown, for why the jury failed to indict. The most obvious of these was a lack of definitive physical evidence and an overwhelming reliance on often conflicting witness testimony. In the wake of the release of evidence, trusted media outlets such as CNN, the New York Times, and the Washington Post published detailed analyses of the events, concluding that, in the case of the Post, while “scientific analysis can determine how many times Brown was shot, where he was standing, even what direction he was moving in…the only windows into Brown’s intentions came from witnesses, and what they saw blended all too confusingly with who they are. Even in this time when so much of life is recorded in bytes and bits, memory is a sly game player. Some things are unknowable.”

If Ferguson is a case of a grand jury failing to indict due to confusion over whether a crime took place or not, Staten Island is the exact opposite. Unlike in Ferguson, there is clear video evidence showing Garner being confronted, restrained, and ultimately killed by members of the NYPD. This case also differs from Ferguson in that, at the time this article was written, the verdict was released without any accompanying evidence or witness testimony other than the video. Therefore, it is impossible to know for sure what the grand jurors were presented with, but it is safe to assume, based on what has been said to media outlets by both sides, that the Garner family argued the events of the video while Pantaleo maintained that Garner would have survived had he not been in poor health and/or resisting arrest. However, by presenting Pantaleo’s argument to the jurors (as the prosecution almost certainly did), they deviated from the normal functioning of grand juries where the prosecutor sells the jurors on why the defendant, in this case Pantaleo, should be charged. This is the result of the much talked about conflict of interest involving local prosecutors charging local police. Although the two problems identified here, lack of evidence and prosecutorial conflicts of interest, are complex in scope, they have potential solutions.

First, officers should be outfitted with body cameras. This was a much talked about remedy for situations such as Ferguson, where what actually took place is unclear, but the argument has fallen out of favor following Pantaleo’s non-indictment in Garner’s case, amid blatant video evidence. While the Garner case demonstrates that video alone will not stop abuses of power from happening, there are a few things to keep in mind. Even outside of court, where they may seem less practical, cameras tend to improve relations between civilians and police. For example, when the city of Rialto, California randomly outfitted half of its police force with cameras, complaints of police brutality fell by 88%. “When you put a camera on a police officer, they tend to behave a little better, follow the rules a little better,” Rialto Police Chief William Farrar said in a New York Times article last year. “And if a citizen knows the officer is wearing a camera, chances are the citizen will behave a little better.” On the other hand, the cameras are costly and do not protect entirely against police brutality issues. But based on the results seen in Rialto and other American cities, they have a positive effect on civilian police relations and should, at the very least, be considered.

Second, as the Garner case has made us painfully aware, prosecutors face a clear conflict of interest when they are charged with indicting a police officer. This stems from a wide variety of reasons, ranging from district attorneys not wanting to wreck their relationship with a partner organization, to not wanting to lose their election because the police union backed an opponent. Wisconsin, however, has given the country a roadmap to eliminating such a conflict of interest in a law passed in April of this year. The law, which, according to the Wall Street Journal, “will require independent investigations into every case of a suspect dying in police custody,” and was a response to the death of two individuals while in police custody. While the bill has not been in place long enough to measure its effects on objectivity in police brutality investigations, it does seem to address the conflict of interest that so often plagues them. If this bill successfully improves inquiries into police abuse, it should absolutely be looked at as a model for other states to follow, and perhaps paired with a requirement for special prosecutors.

Any suggestions for improving police/civilian relations, not to mention solutions to race-based issues, do not negate the importance of addressing the history (and reality) of race in the United States. But that is not going to be a quick conversation, and nor will it be one that will easily lend itself to legislation. Therefore, in the meantime, policymakers should consider these ideas that seek to encourage accountability and impartiality.

This article first appeared in print in The Kenyon Observer on December 17, 2014.

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