The tragedy of Michael Brown's death, unarmed and shot by a member of the Ferguson police, is now followed by the tragic failure of the local courts to force the policeman to stand trial. This cannot stand without a measure of accountability. And on that score look no further than the prosecutor's office.
Indeed, in less than a week with have two clear examples of the unique power that prosecutors hold by way of prosecutorial discretion. Last week President Obama ordered his law enforcement apparatus to stand down, announcing that it was more important to keep families together and urge the Latino undocumented to come out of the shadows -- with clear benefits to the U.S. economy -- than to prosecute 5 million more deportations.
And last night St. Louis County Prosecuting Attorney Robert McCulloch announced that his painstaking presentation of "every scap of evidence" to the grand jury in its search for the "truth" came back with no charges against Officer Darren Wilson.
In New York prosecutorial discretion was used creatively in recent years. In the Bronx the district attorney decided not to try persons for trespass under the Clean Halls program because the arrests, which involved "stop and frisk" practices, were never justified. New York County's district attorney decided to prosecute men soliciting prostituted women -- and provide social services to the women instead of prosecuting them for prostitution. And in Brooklyn the district attorney refused to continue to prosecute persons for possession of minor amounts of marijuana -- well before the city changed its overall policies. Each of these decisions is authorized by the discretion we give the arm of the executive branch that decides who gets charged, what the charges are, what the the bail is, and what the sentencing options are.
We may read quite a bit about the exclusive power of grand juries to indict and how that participation provides community checks and balances on executive power, but the reality is far different. The well-worn colloquial observation that any prosecutor worth his salt can indict even a ham sandwich says it all. Last night's decision in Ferguson was orchestrated by McCulloch.
All grand juries are led in their deliberations by the local prosecutor. In Ferguson that prosecutor abdicated his duty to represent the victim's family by playing the role of bystander. Who in that grand-jury courtroom advanced the interest of the victim of the possible crime? Apparently no one. That is not justice, nor will it restore faith in the system for the residents of Ferguson, or for black and Latino communities throughout the country.
Instead, McCulloch presented every bit of evidence at his disposal, as if the grand jury's role was to decide the guilt or innocence of Officer Wilson. This is patently wrong. What it needed to decide was whether there was probable cause to believe that any of the following crimes was committed: first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter. The first two are unlikely without some evidence of malice. But the last two are possible with evidence that the officer acted negligently.
Some accounts allege that Mr. Brown had his hands up at the time of the shooting. That would support probable cause. Instead, last night, the prosecutor referred several times to the allegation that Mr. Brown had shoplifted cigarillos immediately before the encounter with Officer Wilson. McColluch then referred to the officer's testimony that he was aware of the reported robbery. So can shoplifting ever justify the use of deadly force? In Missouri it can only if it is in the act of a violent felony. So this raises the question of Wilson's possible negligence in shooting an unarmed person several times.
A tragedy was multiplied last night. Only a federal indictment can rectify some of this harm. The Brown family is in the same position as the families of Anthony Baez and countless others. Hopefully the U.S. Department of Justice will act swiftly.
But at the end of the day, Mr. Brown was shot dead while unarmed and, by many accounts, with his hands in the air. That alone should have forced the local criminal-justice system to act. Its failure to do so -- precisely because the local prosecutor inverted the grand jury's role -- cannot be excused even if the federal government steps in.
The country is watching, and every activist committed to changing policing practices in urban America is forced to relearn the lesson of how difficult it is to force police officers to stand trial. That too must end if we are to change the discriminatory aspects of America's criminal-justice system.