The conflict in Ferguson with regard to the killing of Michael Brown has two common denominators with the public: justice and accountability. These mean widely varying things based upon your understanding of this situation. These core desires for justice and accountability are essential to the American character. We are a nation of noble principles that we so often fail to realize.
The first step in solving a problem is identifying that problem. Our conversation about the killing in Ferguson may permit us to improve our embrace of justice and accountability if we are willing to boldly act.
Systems resist change, but justice and accountability require change if we are to honor our American principles. Understanding requires both the individual and systemic perspectives of the situation.
We live in a county where whites and blacks use drugs at about the same rates. In America, young black men are six times more likely to be imprisoned for a drug crime than a young white men. Young Hispanic men are 2.5 times more likely to be imprisoned than young white men for drug crimes. If we live in a country where everyone is equal before the law, how is this possible? The answer is, we don’t have a racially unbiased criminal justice system.
How is that possible when the vast majority of my fellow participants in the criminal justice system are not individually racist? The three dominate factors that most citizens interact with in the criminal justice system are: police, prosecutors and, the courts. These are the institutional gatekeepers and the guardians of law and order. Are they all racist? That answer is no. Nevertheless, we are institutionally racist for several reasons. Human nature causes us to feel more at ease around those with whom we share obvious similarities, those who are different are therefore, more suspicious.
The police are where the rubber meets the road in the world of law and order. Also where you are most likely to encounter an overtly racist officer, but very few of those actually exist. Just as a son learns to stalk deer from his father, the legacy of racism has become ingrained in police practice as part of the hunter of crime tradition. This is in part reflected by the racial disparity index that the Missouri attorney general provides annually for each police department. How do we change these patterns of hunting crime where race is the leading factor in targeting a citizen? One method was recently enacted in Columbia, MO when all its police officers were provided with body cameras to record their official interactions with the public. A camera is a good cop’s best friend and a bad cop’s nightmare.
The key is for prosecutors to become champions of justice and not merely the police. Police and prosecutors are reliant upon each other if our justice system is to work, but they have different responsibilities. All too often prosecutors abandon their independence and become total advocates for the police. In my opinion, a good prosecutor should be 100 percent pro-law and 65 to 85 percent pro-police. Additionally they should be willing to hold bad cops accountable and challenge poor policing practices. This guardian of justice role rarely happens. A prosecutor I know once told me that racial profiling was a police department problem and not his responsibility. I could not disagree more with that assessment.
Courts are the last defense against racially motivated law enforcement, but they too often engage in intentional blindness which enables institutional racism to dominate our criminal justice system. Especially within the states under the 8th Circuit U.S. Court of Appeals.
The abstract requires examples if understanding is to occur. My client, Alphonso Fagala, a black male, in April 2010, was heading to St. Louis on I-70 with his girlfriend and her child when he drove past a City of Foristell police officer. A city where the racial disparity index was five to one. This officer initiated pursuit without activating his emergency equipment. According to court documents, this officer, in a 70 mile per hour zone, reached 99 miles per hour getting within five feet of the bumper of an intervening car and forcing it over before he allegedly observed Mr. Fagala “following too closely” behind another vehicle. Only then did the officer activate his emergency lights and siren. Upon stopping Mr. Fagala, this officer allegedly smelled marijuana and then searched the passenger compartment, then the trunk. While searching the trunk officers found a concealed pistol and informed Mr. Fagala that if he didn’t admit that pistol was his that Children’s Services would take custody of his girlfriend’s child and they would both go to jail. Mr. Fagala, a felon, admitted the gun was his. The officer’s in-car video all but proved that this was a stop made without probable cause and suggested my client was guilty only of Driving While Black (DWB), but Missouri courts sent Mr. Fagala to prison for four years.
My clients, Josh Williams and Philip Porter, young black men, at noon on a sunny October, 2011 day went to a park in Columbia, MO to listen to rap music and talk. They drove past orange cones marking an area where motorcycle cops had been training and parked on the north edge of the parking lot. Three white motorcycle cops returned and saw them parked. These police then engaged their emergency lights and seized Josh and Philip at gun-point, pulling them from the car and injuring Josh by handcuffing him. All before telling him he was under arrest and holding him for an hour before releasing him. Federal courts ruled they were not “arrested,” merely reasonably detained. Therefore, no violation of their rights had occurred.
According to news reports in, 2009 Henry Davis, a middle aged black male, was stopped in Ferguson, MO, where an officer ran his plates and discovered there was a warrant for a man with the same name but different middle name, and different social security number. Henry Davis was then arrested on the wrong warrant. During the booking process the error was discovered, but this Henry Davis was booked anyway. As the second man being placed in a one man holding cell, Mr. Davis requested a nearby mat to sit on, which apparently offended the officer. Four officers later returned and handcuffed and beat Mr. Davis to the point that he had to hospitalized. Mr. Davis was then charged with damaging government property by bleeding on police uniforms. When Mr. Davis was released he filed a civil rights suit against the Ferguson Police. The in-station video recording was speed up to 32 times normal speed and was unviewable. The St. Louis County prosecutor then filed Assault on Law Enforcement Officer charges against Mr. Davis, but they were dismissed. A federal court found that Henry Davis’ concussion from the beating was not enough on an injury to be a violation of his rights and the case was dismissed.
As a young cop, if someone had told me that I worked in “a racist criminal justice system” I would have been tempted to spit in their eye. As a lawyer in that system, I know that the American criminal justice system is institutionally racist, even though the vast majority of people that work within it are people of good will. We can change the system, but that requires us to recognize the problem and commit to making the necessary changes. Without justice, peace will remain elusive.