THE BLOG
10/21/2014 04:19 pm ET Updated Jan 04, 2016

Ferguson's Justice Quagmire

To be sure, the residents of Ferguson and their law enforcement officials are holding their respective breaths as to the finding of a grand jury investigating the police killing of unarmed teenager Michael Brown. My fear is that a failure to indict, or a later trial verdict of not guilty, may bring into specific focus the gap between what the public perception is of what happened that night and the ability to prove such facts in the sterile environment of an evidence based prosecution. If there is in fact a failure to obtain an indictment or conviction, it will later be very difficult to separate what went wrong in this individual case from broader systemic inequities.

The still gathering hurricane of outrage in Ferguson has its legitimate roots in years of racial marginalization and the virulent relationship between minorities and the police. The intense scrutiny fueled by the media's saturated coverage of this case has resulted in a fierce country-wide collective thirst for "justice." In contrast, in most criminal prosecutions, only a small group of people are personally vested in the outcome. The dynamic here will thereby magnify the loss of confidence in the justice system exponentially if Officer Darren Wilson is acquitted or never charged with a crime at all. However, much of what makes the American justice system great are the layered procedural safeguards. We committed long ago to "beyond a reasonable doubt" as the standard by which proof must exist before we can punish those who commit a crime. The oft quoted 18th century British legal jurist William Blackstone, relied on by our founding fathers to create our justice system's structure, summed it up when he wrote "Better that ten guilty persons escape than that one innocent suffer." This may be one of those cases, which we as prosecutors see all the time, in which we know in our gut that someone is guilty, but we can't prove it beyond all reasonable doubt. The burden of proof and due process often find themselves on a collision course with the fundamental human need to realize retribution.

Compounding and clouding the factual findings in this case is a pervasive history of institutional discrimination -- both overt and covert -- so that the default position becomes one in which the system is perceived to be rigged to cover up a killing of an African American by a Caucasian police officer. However, arguendo, even if the system operated completely fairly, could the Ferguson community realize "justice" without satisfying the visceral need for actual retribution? Probably not when it comes to a dead teenager with allegations that the killing, in many people's eyes, has a racial undercurrent. But, more fundamentally, it is rare that mere procedural fairness and equity will ever independently satisfy our need to feel like "justice" has truly been served. I think it is important to explore the depth of the human need for retribution generally, especially given the magnitude of the social impact of the decision by the grand jury in this particular case.

Retribution, another word for revenge, is a natural, cognitive instinct. Neuroscience has discovered that the taste for revenge is hard-wired in our brains--specifically, in the left prefrontal cortex. Interestingly enough, it's the same region that also controls appetite. In fact, whenever we imagine taking an act of revenge, our brain waves exhibit the same type of neural response as when we're craving our favorite foods (say chocolate or cheese). So it appears such famous idioms claiming that revenge "is sweet" and "a dish best served cold" are more than just poetic, colorful phrases. Indeed, they have a biological basis and could explain why many people have that "oh-so-satisfying" feeling whenever they've indulged their imaginations in revenge-driven stories.

As a whole, modern-day society has been reluctant to acknowledge that revenge is an inherent trait, that it's part of who we are. Semantically, "revenge" gets a bad rap as a savage, primal urge--the evil twin of "justice," its more honorable, civilized sibling. "The distinction between justice and vengeance is false," writes law scholar and author Thane Rosenbaum. "A call for justice is always a cry for revenge." In his book Payback: The Case for Revenge, Rosenbaum has gathered extensive references to neuroscience, literature, pop culture, headline news, and case law to argue that American society has a moral duty to avenge its victims, but that unfortunately, our legal systems ignore the visceral desire for revenge as a fundamental part of justice. In my view, Rosenbaum's general point is correct, but he takes it a bit too far because even an acquittal can be justice if the process is fair. In other words, "procedural justice" sometimes is a better fit than an "outcome only" focus.

Our system of institutionalized retribution is certainly not a contemporary concept or exclusive to American democracy. More than 2,500 years ago, a Greek playwright named Aeschylus wrote a cautionary, rather morbid tale on the self-perpetuating nature of bloodthirsty vengeance in a trilogy called the Oresteia, specifically the tale about the cursed House of Atreus. The backdrop for this tragedy stretched across generations of overlapping familial feuds resulting in a series of grotesque retributive atrocities.

The Greeks, while seemingly distant in the formation of our civil structures, are our very immediate relatives when considering the evolutionary organization of mankind. These ancient dramas, just as in Shakespeare's day, were the means by which more subtle societal values were imbued in the masses. Point being: when it comes to avenging those wronged, there's still a code of honor to be followed here (or, as the Oresteia trilogy warns us, an eye for an eye will certainly make us all blind).

So while revenge may be a normal instinct, that doesn't mean every man, woman, and child gets to dole out Dirty Harry-style vigilante justice. We still need the government to "settle the score" for us in a more civilized and forthright manner. Imagine if anyone could legally take the law into his or her hands? Without orderly criminal proceedings, blood would run through our streets (literally), chaos would rule (day and night), and our society would find itself in a perpetual state of heightened violence. Therefore, there must be public acceptance with the result, even when the wrongdoer gets away with a crime, if, and only if, the process is fair to all sides.

We will wait to see if we can, at the very least, realize "procedural justice" in Ferguson. However, even if the prosecution of Darren Wilson is completely fair, it will be very difficult to temper our human instinct for retribution if he is let off. Therefore, anything less than a conviction will likely be construed by the community as a heinous miscarriage of justice. Only by letting the judicial process take its course will we truly know if this man is guilty or innocent."