When the grand jury in Staten Island failed to indict Officer Daniel Pantaleo for choking Eric Garner to death, the immediate response by the public was astonishment, surprise and shock at the "failure" of the American justice system. After all, there was incontrovertible proof this time around, video footage clearly showing three white police officers approaching Eric Garner who firmly said that he had done nothing wrong and that his harassment needed to end. "I'm minding my business, officer. Please, just leave me alone," he pleaded. "Please, don't touch me," he said as the cops took him down. When Pantaleo put Garner in an illegal chokehold, Garner kept pleading. When Pantaleo pressed Garner's face into the concrete, Garner was still pleading.
We all saw Pantaleo viciously choke Garner. The prosecutor saw it. The grand jury saw it. All of us heard Garner's dying words: "I can't breathe." He said it once, then twice, then seven more times. As Garner lay dying with indifferent-looking police officers around him, Officer Pantaleo waved to the camera. It was a spectacle, a public execution and we all witnessed on a small scale what happens across America every day. Few White Americans ever witness a man destroyed by state power. Now, they've seen it. One minute Garner was a thinking, breathing, functioning human being like you and I. The next, he was finished. "In two minutes, with a sudden snap, one of us would be gone -- one mind less, one world less." The lines from Orwell's A Hanging resonate as the video plays.
But the grand jury did not indict Pantaleo, despite the well-known fact in legal circles that a prosecutor could get a grand jury to "indict a ham sandwich," in the infamous words of New York state Chief Judge Sol Wachtler. Indeed, in 2010, only in 11 cases out of the 162,000 U.S. attorneys prosecuted that year did grand juries not return indictments. When cops were involved, however, the situation was markedly different. The cozy relationship between prosecutors and police means that the latter are rarely indicted, never-mind convicted.
The disquieting truth is that there was never to be an indictment in this case, which on simple legal grounds should have moved to trial, because the US justice system knows no justice when it comes to African-Americans. To call this a failure would be a misnomer; it is a system that was designed to exclude, ignore and trivialize the concerns of Blacks while targeting, shooting, caging and killing them. A mega industry of institutionalized racial violence propagated by prosecutors, penalties, and prisons ensures that the system resists reform. By definition this system cannot betray the poor and minorities. It just does its job. In this manner, the justice system worked in Staten Island and Ferguson, as it was designed to.
As the name "justice system" suggests, the problems are, well, systemic. Nice liberals and centrists often fail to fully appreciate just how embedded racism is in a system that has 5.3 million people within its walls. From police officers to prosecutors to prison guards, the entire system is rigged against minorities, the poor and Blacks. This is why 80 percent of criminal defendants are indigent and cannot hire a lawyer. It is why 70 percent of exonerations by DNA testing are of people of color. It is also why there are such widespread racial disparities in sentencing. Just as the system worked in the cases of Michael Brown and Eric Garner, it has also succeeded for many of the 1 million African-Americans who are imprisoned at a rate of six times that of whites. It is a system that works very well for the government, which at the federal level boasts a 93 percent conviction rate, 97 percent of which are won through plea bargains where prosecutors have all the leverage and power while the defendant has almost none.
Equality and justice for some should be plastered on every courtroom.
Despite these truths, after every incident of a white cop shooting an unarmed Black man, the usual paeans to nonviolence and the inherent fairness of the justice system come rolling off the tongues of political leaders and establishment journalists. This myth of an otherwise just system failing in one-off incidents was propagated and reproduced after Amadou Diallo was shot 41 times in 1999 by white cops who thought he was pulling out a gun when he reached for his wallet; after Patrick Dorismond was shot dead by an undercover officer in 2000; after 17-year-old Timothy Stansbury Jr. was killed by a cop in 2004; after Sean Bell was shot 50 times.
Accompanying the elegies to the Great American Justice System are the racist stereotypes from polite liberals and ignorant conservatives. After Garner was killed, The New York Times opened with a description of Garner as "The 350-pound man," who was "arguing with police," just in case Times readers were curious about Garner's weight, a throwback to the stereotypes of beastly Black men. The paper of record reminded us that Michael Brown "was no angel." Darren Wilson referred to Michael Brown as a "demon" and "Hulk Hogan." The ghoulish-looking, venom-spitting Representative Peter King got in the action as well, taking a break from harassing American Muslims, to blame Garner's obesity for his death. Unfortunately there is no scumbag quota in the modern Republican Party.
In reality, Michael Brown and Eric Garner had no chance, and we should not pretend like they did. They were caught up in a system that has done to thousands before them what it will do to thousands after them. Despite having just 5 percent of the world's population, the United States has a quarter of its prisoners. The weight of this punishment falls disproportionately on African-Americans. While state authorities previously used slavery and segregation and Jim Crow to subject and control the Black population, the excuses for racialized control eventually ran out. It became unpopular to be a racist, and so a separate artifice was constructed to sequester and subdue African-Americans. In the political sphere, this was Richard Nixon's victory with his racist electoral strategy. As H.R. Haldeman blushed about his boss, President Nixon "emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to."
In the judicial sphere, there is plenty of blame to go around, but saint Ronald Reagan is chiefly culpable. With the onset of the War on Drugs, the U.S. prison population grew from 350,000 to 2.3 million people. Slavery and Jim Crow in the past, the "legitimate" way to harass and attack Blacks was to sweep them up from the streets for low-level crimes and lock them up. It even had a nice cover-up title known as "law and order." As Michelle Alexander recounts in her magisterial book, The New Jim Crow:
President Ronald Reagan officially announced the current drug war in 1982, before crack became an issue in the media or a crisis in poor black neighborhoods. A few years after the drug war was declared, crack began to spread rapidly in the poor black neighborhoods of Los Angeles and later emerged in cities across the country.
That's right, crack cocaine became an issue after, not before, the Drug War started. Like all drug wars, including the Canadian one, it was a racialized affair.
The number of African-Americans in the prison-industrial complex quadrupled in the three years after the War on Drugs began. Despite the fact that 5 times as many whites use drugs than African-Americans, the latter are imprisoned for drug crimes at a rate of 10 times that of Whites. The Rockefeller drug laws upheld a sentencing disparity of 100:1 for crack use, primarily used in African-American neighborhoods. These were reformed only four years ago to the milder but equally disreputable ratio of 18:1.
Democrats, eager to win votes, caught on to the trendy law-and-order campaign as well. Then-Governor Bill Clinton, running for president and worried that he would be deemed soft on crime, flew home to Arkansas to execute a mentally impaired Black man named Ricky Ray Rector. ("I can be nicked a lot, but no one can say I'm soft on crime," Clinton said afterward.) From the Clinton administration cutting funding for public housing by $17 billion while boosting corrections funding by $19 billion, to President Obama repeatedly scolding Black America on its ills, the Democrats are also complicit in failing Black America. When President Obama lectured Black fathers to engage with their kids, someone should have asked him how millions of imprisoned Black men could play with their children. Ironically, in another world, the racist and exclusionary justice system might have conspired against a young pot-smoking Barack Obama the way it conspires against millions of young Black men, most of whom do not end up at Harvard Law School.
From dealing with cops on the street -- authorities of the state given immense discretionary power -- to dealing with state lawyers in the courtroom, the system works to imprison and ultimately to destroy.
And, it has within its gears the mechanisms to thwart charges of discrimination. This runs from street level police right up to the venerated and robed politicians on the Supreme Court. As the legal scholar David Cole has written:
The tactic of burying race discrimination claims before they can be made is not limited to selective prosecution...the Court has imposed nearly insurmountable barriers to persons challenging race discrimination at all stages of the criminal justice system.
Simply put: there is nothing extraordinary about the outcomes in Ferguson and Staten Island. They are what we should expect by a legal system in a society where the majority still harbor prejudices against African-Americans. A full sixty percent of Staten Island residents continue to live in a mythical land where police treat both races the same.
Condemning racism, however, is simple. The racist could condemn racism. Accepting how far and wide racism's tentacles reach, from the hearts of millions of Americans through the institutions of American democracy is much harder. "They are in effect still trapped in a history which they do not understand," James Baldwin wrote to his nephew, referring to White America, "they cannot be released from it." It takes a brute to brutalize, and American power has been nothing but brutish towards its Black minority. When any group of people are dehumanized, assaulted, harassed, deprived of their rights, ghettoized and told they should accept this as "just," eventually, they will retaliate. Across the country, Black Americans and their allies are telling the country and the world: Enough is enough. We want to breathe.
We should commend them for doing so.