Punishing Impunity and Judging Discretion: Michael Brown & Eric Garner

“Burn this B*tch Down,” Louis Head shouted in anger after learning of Robert McCulloch’s announcement to the world that the Ferguson grand jury returned a no true bill against Officer Darren Wilson.  The protests began and so did the looting.  The talking heads quickly focused on the looters, satisfying our insatiable need for porno-news. Like the aftermath of the Rodney King verdict that preceded it, the question became why African Americans were destroying property in their own neighborhoods? The reason is because African Americans are only allowed to burn their own “b*tch” down and not anyone else’s.  Conversely, the same limit had not been placed on white America.  After the Emancipation Proclamation, Black Wall Street thrived until white America burnt that down. Anger by white America against African Americans many times ended with things getting burnt down.  ‘Legitimized’ violence against African Americans has thrived due to a combination of two factors: impunity and prosecutorial discretion.

Impunity, is “exemption or freedom from punishment, harm, or loss.”  The brief violence I described above continued, and continues, because the actors fear no punishment.  The punishers, if any, were typically comprised of the same people that terrorized – law enforcement, politicians, or judicial officers that turned a blind eye. While much has changed since emancipation, officers remain protected.  Officers act with impunity for the same reasons our soldiers in foreign countries can rape a girl and set her whole family on fire. Someone led them to believe that it was okay to do so with impunity. Even if some officers get punished, the act itself, I submit, was driven by a belief that the officer was entitled to act in such a manner.  Rather than shoot to wound or don’t shoot at all, they almost always shoot to kill.  Rather than wisely subdue, they almost always choose to taze or pull out the night stick.  I am not proposing that all officers are bad, but rather that the ones that do behave badly do so because of “impunity.”

Now, throw into that mix prosecutorial discretion.  It is the prosecutor’s or district attorney’s discretion to decide whether to file charges and if he chooses to do so, which charges to file.  In the Ferguson case of Michael Brown, Prosecutor Robert McCulloch clearly never wanted to file charges and only sent the matter to the grand jury in order to sandbag his position. Likewise, in the Staten Island case of Eric Garner, there were lower charges that District Attorney Daniel Donovan could have charged the jury.  Prosecutorial discretion is both a shield and a sword. It protects law enforcement officers against gross misconduct. Yet, the same discretion can wield deadly consequences for the accused.  Prosecutorial discretion influences whether to seek the death penalty, to seek the highest charge or a lesser included offense, or whether to offer a good plea or no plea.  It is no surprise then that there is a disproportionate number of African American offenders against whom the death penalty is sought and who serve longer sentences for the same crime committed by Whites.

In Cleveland, Tamir Rice, a 12 year old boy, was shot by officers when he reportedly brandished a fake gun that looked amazingly real at the officers.  I blamed the parents for giving this young African American male a realistic gun in this type of environment.  How irresponsible! Then a friend asked, “What if this was a white boy in Texas with the same gun?  In fact, at 12 years old, he’d be expected to be able to handle and fire a gun.” My friend was right.  We have accepted the narrative told about Blacks and “reality” projected about being White in America: each group is treated differently in the same situation. I am not advocating abolishing prosecutorial discretion. When used properly, it serves a good purpose. However, it is often abused. In all of this, we are partially to blame.

First, know the law and seek the law.  I have come across many young African American males that confidently tell me that they can curse at a cop as an exercise of their Constitutional right. Yet, when they are wrongly stopped and frisked they believe that questioning why an officer has stopped or detained them is akin to resisting arrest.  Know your basic rights, but always be respectful. Until things change, officers can act with impunity.  Demand that officers be held personally liable for wrongdoing.  As it stands, if and when an officer is ever sued and found liable, the City (taxpayers) typically pay the bill.  If the same officer can be personally held liable for negligence, the officer might think twice about the next person whose head he bashes open or heart he pierces with a bullet.  Yes, this change might mean a smaller payout for the family, but it may result in greater responsibility on officer conduct.

Second, demand that prosecutors take charges to the jury in the same way they take charges to the jury for non-officers.  The law is already written in such a way that an officer’s conduct is evaluated with greater deference than for you and I.  We do not need prosecutors creating another level of protection.

Third, register to vote so that you can be considered for selection for jury duty. Until we chose to punish impunity and judge discretion, I do not see things changing.


Photo credit: Associated Press

Mustapha Ndanusa, JD

Mustapha Ndanusa, JD Mustapha is a Brooklyn based attorney, practicing civil and criminal law. For more information about his practice, you can visit his LinkedIn profile and can be reached at mndanusa@gmail.com https://www.linkedin.com/pub/mustapha-ndanusa/7/8b6/741


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