This morning I stopped by a neighbor’s house as CNN was replaying the video of Officer Daniel Pantaleo choking Eric Garner to death. My neighbor was screaming: “How? How? How could they not indict?”
It’s a question that many asked last week after a grand jury in Ferguson, MO, opted not to indict Officer Darren Wilson for any charges in the shooting death of Michael Brown.
It is, perhaps, the question that will define 2014 in American history: how did we come to have a criminal justice system that cannot indict an officer for a homicide, even when it is recorded on video?
My neighbor’s disbelief—his utter confusion at what he was seeing—reminded me of another conversation I had in Germany some years ago. After the Holocaust, when the West stood together to say “Never Again” in the face of genocidal violence against Jews, the US government committed to send high school students each year to study in Germany. I was one of those students. The year I lived outside of Aachen, Germany, I was hosted by the daughter and son-in-law of the town mayor. They were good white liberals. The husband ran the recycling program in the village. They had a poster of Che Guevera on the wall in their dining room. They taught me that the German slang words for Turkish immigrants were the equivalent of the N-word in Southern American English. They were personal friends of the Green Party candidate for Prime Minister.
But I will never forget Christmas dinner at Opa the Mayor’s house. As I asked him about his personal history, he broke down crying. His grief was every bit as visceral—his confusion as evident—as my African-American neighbor’s this morning. Only, in his case, he had been on the other side. “I was a member of the Hitler Youth. We thought we were doing what was right for God and country. I cannot understand how we were so wrong.”
How does the unimaginable happen? How can human beings commit such atrocities against one another?
It doesn’t happen all at once. In his book The Collapse of the American Criminal Justice System, William Stuntz argued in 2011 that the seven fold increase in our prison population and the undeniable racial disparity throughout our criminal justice system was the result of an imbalance of power in the hands’ of prosecutors. You can see this most clearly if you look at the power prosecutors have. The way our criminal justice system works, the chief justice officer in any jurisdiction is the prosecutor. As a representative of the people, he or she is a publicly elected official. But prosecutors are elected in county-wide elections. While cities became browner and blacker throughout the 20th century, white flight took the historic benefactors of racism from the city into surrounding suburbs and counties. Prosecutors are overwhelmingly white, chosen by a majority white electorate at the county level. But the people they prosecute are overwhelmingly black and brown in urban contexts. And the people they work with to gather evidence and bring those charges are law officers who have been incentivized for decades to fight a so-called War on Drugs in the places where people of color live.
As the chief justice officer, any prosecutor can bring charges against anyone he or she has probable cause to thinks has broken the law and endangered the public. This is what we elect prosecutor’s to do on our behalf. When, for whatever reason, a prosecutor wants to build public trust in bringing particular charges (or, as we’ve seen, choosing not bring them), they can call together a grand jury to hear their case against someone. Grand jury’s never hear “the other side” because they aren’t asked to weigh guilt in a case. They simply hear the prosecutor’s case for charges that might be brought.
Again, the evidence that prosecutors work with day in and day out is the evidence handed over to them by local law enforcement. Asking a prosecutor to indict a local law enforcement officer is somewhat akin to asking a bank executive to reprimand his VP’s for poor investment decisions they made together. It isn’t going to happen.
In 2014, the American public is beginning to catch on.
So, we ask ourselves, how did this happen? Sadly, Martin Niemoller’s famous quote about the Holocaust applies to most white Americans:
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
The parallel with Nazi Germany will always be called extreme by people who are not directly affected by totalitarianism, but the fact is that over 68 million people in America now bear the mark of a criminal conviction on their records. So even if they haven’t come for me, they’ve come for someone most all of us know by now.
First they came for the young black men who could be written off as “drug dealers, ” and many of us did not say anything because we were not young black men living in neighborhood’s under occupation. Then they came for the “undocumented, ” and we did not say anything because we had our papers in order. Then they came for the poor white folks who got hooked on meth when they lost their factory job, and we did not say anything because, well, even though we didn’t say it we silently agreed that “those people” are “white trash.”
But then, while all America watched, they killed the black men who have always been identified as enemy number one. They did it because they knew the could. They did it because they felt threatened. But they did it after a full fifth of the population has felt what it means to be marked “criminal.” They did it after Orange is the New Black. They did it after people had learned to talk about a “New Jim Crow.” They did it, frankly, on the watch of a black President and a black Attorney General.
Now Ferguson is burning. Last night, New York City came to a stand still as protesters blocked the streets. Across the country this week, people who know people who’ve suffered injustice in America’s broken criminal justice system walked out of school and work by the tens of thousands to say, “Business as usual can’t go on.”
2, 000 years ago, when Jesus was born in Bethlehem, the angels sang, “Peace on earth, good will toward all people.” But the authorities ordered the death of innocent children. Matthew’s gospel records that “weeping was heard in Ramah—Rachel weeping for her children and refusing to be consoled because they are no more.” This Advent season, America is hearing the cries of Ramah. In my neighbor’s living room, at vigils in churches, at protests on the streets, Rachel is weeping and refusing to be consoled.
If we will not weep with her, it will cost us our soul. But we cannot weep without wiping our eyes and looking more closely at what is happening. Because while the injustice of racial disparity is hard to imagine, it is not impossible to explain. Little by little, we’ve been standing by as America’s criminal justice system has perpetrated injustice for decades. Now, it’s affecting all of us. We can no longer avoid the painful ghosts of our past.