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Blind justice? An exchange on Ferguson: part 2

This Fall, in the midst of a sharp and often acrimonious public debate on the events that occurred in Ferguson, MO, the authors who contribute to Covenant found themselves engaging in a similar, private discussion. And, despite some convergences, we did not reach a common mind or understanding. For some, it might seem premature to broadcast our disagreements in public. But, as Bishop Sutton recently said: “If the Church can’t have this conversation, who can and where can it happen?” 

As an online community of evangelical and catholic Christians, we recognize a common vocation to “humility and penitence in the teeth of painful division and to reconciliation in love,” as well as to the furthering of understanding through dialogue and debate. We offer the following exchange as an initial gathering of the fruit of our common discussion, knowing that not everyone will agree with the individual contributions of the exchange. The exchange is much longer than the average Covenant post, in order to deal with the complexities of the topic. Dale Rye offered the first piece on January 1, highlighting some legal and theological deficiencies of the debate, especially in the Episcopal Church. Caleb Congrove’s response, posted here, attempts to bring things back to the presenting issue: ongoing racial tension and inequality. 

 Zachary Guiliano and Christopher Wells

All is not well: in response to Dale Rye

Caleb Congrove

Dale Rye’s reflections on the events in Ferguson bring some very helpful clarity to the conversation about the grand jury’s decision not to indict Darren Wilson. As an experienced lawyer and prosecutor, he knows this system from within. His contribution is accordingly valuable because it contextualizes the decision from within, explaining the rules and conditions according to which it was made. For me, that context has been a blurry mystery in the background of a very visible conflagration unfolding front and center. Since the decision in Ferguson, Missouri, a grand jury in New York likewise decided not to indict a police officer in the death of Eric Garner. And I do not know what to make of these decisions. Unexplained, they can very easily seem to be inexplicable. For reasons unknown, in a secret process, unnamed persons have vindicated and set free white policemen who, without any doubt or question at all, killed unarmed black men.

I can honestly say that Dale’s explanation has done more to help me understand this decision — what it means and what it doesn’t mean — than I had gathered from any other source during the many months that the death of Michael Brown has been in the news. Despite some of the differences that I stake out in this response, I hope it is clear throughout my reply that I both respect and value what Dale has said.

Nevertheless, I find Dale’s reflections on the events in Ferguson to be inadequate in important ways. According to the rules, the grand jury in Ferguson may have made the “right decision.” But for me that question and Dale’s question simply leaves too much unaddressed. Even if the grand jury made the “right” decision, there’s a whole lot more that’s just profoundly wrong. To me, there are two main shortcomings to Dale’s arguments.

First, the thoughts he shares about the legal process naturally concern the deaths or killings after the fact. He doesn’t anywhere seem to question or challenge their happening in the first place. Indeed, I think he seems to concede far too easily that it is inevitable that police officers will occasionally kill unarmed citizens while carrying out their duties to preserve public order and peace. I do not believe that these deaths are simply inevitable, nor that the mere fact of due process should somehow automatically serve to calm or dampen the public outrage. Due process does not quicken the dead any more than burning shops and breaking windows do.

Second, his apologia for the justice system misses a very important element of the popular protest against the decisions in Ferguson and New York. Dale’s case for the process doesn’t own up to the justice system’s undeniable historical role in perpetuating racial inequality and withholding justice from black people. Accordingly, I think the explanation is limited by what it doesn’t say — it doesn’t press the real depth or breadth of racism in our culture, and it doesn’t manage to address the widespread distrust of the justice system among African Americans.


Self-defense: the viewpoint of the defendant and the inevitability of black deaths

The first part of Dale’s reflection labors to explain the process and to dispel conspiratorial suspicions about the grand jury’s decision: “There are reasons other than institutional racism why these cases so rarely lead to an indictment.” Most of these reasons are to be found within the very rules according to which the grand jury’s decisions have to be made. Prosecutors labor uphill in any self-defense case because “proving that something did not happen is always much harder than proving that something did happen.” Moreover, self-defense cases impose an additional burden on the prosecution’s case “because the situation legally has to be evaluated from the viewpoint of the defendant.”

I agree with Dale that we should not assume that Darren Wilson acted out of racial hatred or ascribe that hatred to his actions. As he points out, it certainly would have been admissible evidence if Wilson had a known history of racially motivated violence. Moreover, I believe that demonizing this individual policeman (or rejecting the caricature) also avoids the more urgent and important question. Our demons are both subtler and more numerous. The grand jury’s decision rightly focused more narrowly on how Darren Wilson saw and interpreted Michael Brown’s actions, but his death necessarily raises a bigger question — how I see him and how you see him. I think we should assume that Darren Wilson probably isn’t that much worse than I am or you are. And that is the large issue that I don’t think Dale’s reflections address: How do “ordinary” and not especially bad white people and cops interact with young black men? How do we see black men?

I think it also has something to do with whether we find police killings an unpleasant inevitability or the object of appropriate public outrage. Isn’t Michael Brown’s death justifiable because it is an understandable outcome of the confrontation? “We” can accept the death of Michael Brown as an acceptable act of self defense because we see him and his behavior as an understandable threat. Personally, I find it very hard to imagine that I would ever be shot to death by the police for taking a swing at an officer or for otherwise behaving badly. Repelled and restrained with coercive physical force? Certainly. Incapacitated by some non-lethal weapon, very possibly. But shot to death? Looking like I do, a white, forty-year-old high school teacher (or maybe a shabbily professorial version of one), my death at the hands of the police seems impossible. It would be shocking and produce plenty of its own kind of outrage and anger. But to most of us, Michael Brown’s death is not shocking in the same way that my death would be. I believe that we can find his death understandable because we can understand the danger he posed to Darren Wilson. And that has everything to do with who Michael Brown was.

My point is that how we interpret the actions of others is shaped by whom we perceive them to be. If I am walking late at night, I will naturally look back if I hear footfall behind me. You do too. And what am I (or we) looking for? To see who’s there. And who I see there really does determine how I assess my situation. We all do this all of the time. We interpret the world around us and interact with those in it. Whether or not I feel threatened or in danger is determined by this reading of my environment, of who I am and who is around me.

To be sure, blackness is not the only thing we use to find our bearings, but it isn’t irrelevant, either. If I deny that, I am not being very honest, and when I hear others deny it, I doubt their honesty too. Black people do the same, though their feelings of shame or embarrassment about it are understandably different from mine. And so the police killings raise the unavoidable question: are black men considered inevitably dangerous in our culture? Inherently threatening? Do ordinary, not especially bad people and cops interact with them differently because they are always perceived to be potential threats? Do we more easily switch to an emergency mode and pitch when a young black man behaves aggressively towards us? Does this have something to do with their sometimes getting killed by the cops, even when they aren’t armed? To me it would be stranger to think that it didn’t.


Justice for whom? Acknowledging the ugly racial history of American justice

In the second part of his remarks, Dale addresses what he regards as some naïve or unrealistic views of the police. Some, Dale suspects, are simply allergic to coercion. Others expect the institution and its officers to keep a peace that the world cannot give, to deliver the justice and equity that can only be experienced now as a promise. And I think I agree with those critical points, so far as they go. Whether it’s a handgun or a Taser, a club or a polite “this way now then, sir,” police power is coercive power. And I agree that we likely can’t do without it in some form or other. And law enforcement agencies can’t fairly be held responsible for all the real inequalities that underlie their interactions in our segregated cities and towns. But Dale’s reflections really do seem to miss entirely a much bigger and more directly relevant problem that hangs over all the discussion about black deaths in Ferguson or New York. Simply put, the justice system has a very large credibility problem with African Americans.

In the tangled and sometimes tortured mess of American race relations, we are never beginning anew. We are already stewing amid many ingredients that we don’t get to choose. One of those ingredients, which Dale does not address, is a deep and pervasive distrust of civic institutions among African Americans. Black distrust of the judicial system in particular hangs over and behind the anger and outrage surrounding Michael Brown’s death. It shouldn’t be surprising.

Two particular episodes or figures occurred to me as I was writing this response. One is well known and fictional, the story of personal integrity and heroism in Harper Lee’s To Kill A Mockingbird. The other, a less well known but very real episode, is related in the diary of a nineteenth-century South Carolina planter and slaveholder, Thomas Chaplin (Theodore Rosengarten, Tombee: Portrait of a Cotton Planter). When a neighbor’s slave died from a particularly severe punishment, Chaplin poured out pure outrage in the privacy of his diary. Talking to himself, he even insisted on calling it “murder.” And yet, along with all the other members of the jury, he voted to acquit his neighbor of what he clearly regarded as a terrible crime. His diary doesn’t tell us why—perhaps he didn’t feel the need to offer himself an explanation or maybe he didn’t even look for one. Perhaps it was simply his duty to a society whose cohesion depended on the coercion of black men and women and their unequivocal subjugation. Whatever his motivation, the Thomas Chaplins in our history of justice have outnumbered the Atticus Finches. And in the end, even the figure of Atticus Finch doesn’t serve to vindicate the system. His was a moral victory, a stand, a conservation of integrity and personal honor. But Atticus Finch’s stand secures only his own heroism or righteousness. It doesn’t save his client, the defendant Tom Robinson. There is no justice in the justice system for Tom, and there never was. His fate was sealed before the jury was selected or the case went to trial. Tom was always going to die. And that much of the story wasn’t fiction at all. Tom Robinson happened not to be a real person, but the real persons who shared his social and cultural status (blackness) were no less hapless protagonists in the same brutal story (and they didn’t get to write it either).

For African Americans, the justice system itself served as the guarantor of their subjugation. Courts upheld segregation in principle and in practice functioned to withhold justice systematically from black plaintiffs, victims, and defendants. The courts were an instrument of subjugation, the last arbiter of the system that kept subjugated blacks in their subjugated places. Perched on a thousand American courthouses, Justice stared out blindly over her seekers and supplicants but she was certainly no nonrespecter of persons. To me, she said one thing. But to others she had something more like this to say: Don’t even think about it, there is nothing for you here. And truthfully, we all know that my paraphrase is both nicer and gentler than the ipsissima verba.

Dale’s apologia for the justice system fails to acknowledge this history and so it doesn’t really address the genuine deficits in credibility and legitimacy that are its natural and undisputed heirs today. Sometimes this distrust can render conspiratorial interpretations that are simply stretched, strained, and far-fetched. While I do believe that Dale’s account of the process sheds real light and dispels some rather sinister shadows, it doesn’t address this very real distrust and anger. When it comes to race in America, there is simply no magical reset button. Addressing the contradictions of black anger and distrust of public institutions in his 2008 speech on race, then Senator Obama made the point with particular eloquence:

That anger is not always productive; indeed, all too often it distracts attention from solving real problems; it keeps us from squarely facing our own complicity in our condition, and prevents the African-American community from forging the alliances it needs to bring about real change. But the anger is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races. (Barack Obama, “A more perfect union,” 2008, emphasis added).

Dale never dismisses racism as a real and pervasive evil in our society. Indeed, he says that, along with classism, it “should rightfully inspire our rage.” But he believes the Ferguson protests are misplaced and that they are more appropriately directed toward that real and pervasive evil than toward an individual cop. I agree that the killing of Michael Brown points us beyond the attitudes of Darren Wilson. For me, however, the chief task remains one of “squarely facing our own complicity in our condition” — to borrow the President’s phrase. We don’t need to point our fingers elsewhere. We must seek justice in our society and in the world but we also need to search within ourselves. This demon lives in all of us and it will only come out with much prayer and fasting. Finally, the outrage surrounding the grand jury decision is part of the inherited baggage of our sad and violent history. I do not disagree exactly with Dale Rye’s arguments. Discussions about the particulars of this decision and the legal process that frames its intelligibility are necessary and important. But in this troubled landscape, it is never really about just this one case.

The featured image is a photo of graffiti in Cape Town. It was taken by Ben Sutherland in 2013 and is licensed under Creative Commons. 


  1. Caleb,

    Thanks for your comments. I would like to make a few specific replies and then a general observation.

    FIRST REPLY: I am sure that many of my arguments could be seen as attacking straw men, but both of us need to stick to the facts on the ground. The specific event that sparked the protests was not a question of whether you or I would be less likely than a black person to be shot for “taking a swing at an officer or otherwise behaving badly.” I am pretty sure what would happen if I slammed a police car door on an officer trying to get out, reached through the window and tried to grab his gun, only ceased that effort when the weapon went off (leaving some of the blood from my hand spattered on the inside of the vehicle), began to run away, but then turned and advanced towards the officer, ignoring his requests to stop and even his first few shots. There are only three possible outcomes: (1) I get shot, whether I am (or he is) white, black, or green; (2) I reach the officer and kill him; or (3) we are both injured and he gets fired for failing to use enough force to stop me. There is no fourth plausible scenario. The whole event is a sad commentary on human nature, as is the number of police shootings (both shootings by police and shootings of police) nationally. However, the sadness has nothing to do with whether Darren Wilson can be justly blamed for committing an unjustified homicide… which is exactly what the protests assume.

    SECOND REPLY: You make the point that if the police shot you, “it would be shocking and produce plenty of its own kind of outrage and anger. Michael Brown’s death is not shocking in the same way.” As it happens, we have a test case. Within just a few days of the Ferguson shooting, police in Salt Lake City who were looking for an armed man who had been reported at a 7-11 approached twenty-year-old Dillon Taylor, who was walking by. He was listening to his iPod through headphones as the officers advanced from the rear and did not comply when they first asked him to stop and then ordered him to the ground. Some officers circled around and pointed guns at his face, so he turned off the music. One officer again ordered him to get on the ground, while another ordered him to put his hands on his head. The suspect was pulling up his pants so he could kneel when he was shot and killed. Mr. Taylor was, of course, unarmed. All this clearly appeared on the officers’ body cameras, but the local grand jury quickly decided it was a horrible mistake and did not indict the shooter.

    I find that case to be far closer to excessive force than the Ferguson event, but it received almost no publicity outside Utah. Taylor’s parents even appeared on an episode of the “Dr. Phil Show” dedicated to the Ferguson dispute, but were essentially ignored by the other guests when they asked why nobody had heard of their son. There is no alternative answer to that question other than the obvious one: Dillon Taylor was white (the officer was Hispanic). The shooting could not be spun as racially related, so it was a nonstory for the national media. If the roles had been reversed, it would clearly have become ammunition in the national debate on race.

    Consider that for a second. The Sheriff’s Office in Neshoba County, Mississippi thought it could quietly use excessive force on minorities in 1964, but every white officer today knows that his interactions with persons of color will be under a special microscope. Most of them therefore exercise particular care in those instances. Maybe white guys like you and me involuntarily sweat when we pass a big black man in a dark alley, but most police know better than to let that affect their professional conduct. They may be abrupt with persons of color they stop, but they are probably abrupt with everyone. There are certainly exceptions, but I don’t think they are extremely common.

    THIRD REPLY: Running through your comments, like many of those I have heard, is the theme that it is always (or almost always) wrong to use lethal force against someone who is not visibly brandishing a deadly weapon, because a reasonable person would use other means to protect life under those circumstances. As you suggest, I instead believe that “that it is inevitable that police officers will occasionally kill unarmed citizens while carrying out their duties.” Unlike private citizens, peace officers cannot just walk away from a confrontation with someone who is likely to endanger third-party victims. People who attack other people are not generally rational at that moment (if they are not drunk, high, or mentally ill, they are at least blindly angry), so talking the subject down will sometimes be ineffective. Once an attack is in progress, the problem is not just that weapons are often concealed (legally, in many states), but that an unarmed man can kill with his bare hands or with the officer’s gun. A general rule of thumb states that if someone rushes a cop from less than twenty-one feet away, the officer will not have time to draw and use a holstered weapon before the attacker can get his hands on it.

    How are the police to respond to an attack? With rare exceptions, peace officers are not trick shot artists. They cannot reliably shoot a weapon out of someone’s hand or fire a shot that temporarily incapacitates without causing serious injury. Because a rattled officer is quite likely to miss, police are trained to always aim for the center of mass because that is the largest target. They indeed have less-lethal weapons, although even pepper spray, tasers, or rubber bullets can kill on occasion. The drawback of all those weapons is that they sometimes do not stop an advancing suspect or do not stop him quickly. If a taser dart gets caught in the target’s clothing, he will keep on coming; if pepper spray blinds an enraged assailant, he may choose to operate by the feel of his hands around your neck (Michael Brown was 6’4″ and weighed 195 pounds). If less-lethal means are used but do not stop the attack, there will be no time to draw a firearm.

    The use of deadly force by an officer should be rare and it is, compared to other homicides. It should be even rarer, but some instances are indeed inevitable. I don’t relish that fact, but I don’t think that it should be “the object of appropriate public outrage,” as you do. As you point out, to middle class whites like you and me, “death at the hands of the police seems impossible.” That the impossible exists is outrageous. To every peace officer in America, death at the hands of a criminal is a daily possibility. In 2014, 126 officers died in the line of duty.

    GENERAL OBSERVATION: If it appeared that I didn’t “own up to the justice system’s undeniable role in perpetuating racial inequality,” I regret it. I thought I did. I said that protesting injustice, by direct action if necessary, is entirely appropriate. This is my issue: Many of the people lauded by the Episcopal Church study guide, those holding die-ins in Grand Central Terminal or blocking California freeways while chanting “Hands up! Don’t Shoot!” are not just protesting the general unfairness of the criminal justice system, but the actions of a particular officer and a particular grand jury. My focus was on whether those specific individuals should be blamed for a societal problem.

    The Fourteenth Amendment to the Constitution promises that no person in any U.S. state — whether citizen, legal resident, or undocumented alien — can be deprived of life, liberty, or property without due process of law, nor may any person be denied equal protection of the laws. The Framers had a dream that henceforth everyone would “be judged by the content of their character and not by the color of their skin.” Dr. King was not the only person who died defending the idea that people should always be treated as individuals with inalienable personal rights, and never as faceless members of a suspect class.

    America has fallen far short of that. The amendment was ratified in 1868. When I started public school in 1955, I was in the only racially integrated district in Texas (and perhaps the entire South). The court order that desegregated most Texas schools, affecting over 2,000,000 students, became final after I graduated from college in 1971. The American record on judging people as individuals rather than members of a class has been wretched. The record of the justice system has probably been as bad, although I think that in many cases the system has done the best that it could with the laws that it has been given. That doesn’t matter to the man on the street. To him, the officer enforcing the law is visible, while the legislators who passed the law are hiding behind a curtain.

    As I said in my article, it is not the job of the police or prosecutors to set public policy. They take a literal oath to uphold the constitution and laws, and most of them take that oath very seriously. Like Atticus Finch, they stand up for legal principles against the social pressure to do otherwise. Those folks are entitled to be judged by the content of their own character as reflected by their own conduct, not by how other members of their profession have acted in the past. Anglo-American justice should never make an individual pay the penalty for others in his class. Since Officer Wilson did not attack the Freedom Riders in 1961, he should not be punished in 2015 for the Public Safety Commissioner’s sins in Birmingham or for the sins described in a Harper Lee novel.

    What I find troublesome about many of the Ferguson protests, and many of the defenses of those protests, is that they represent exactly what the Fourteenth Amendment was intended to prevent: an effort to judge and punish individuals, citizens who have not provably done anything wrong, simply because they are members of a suspect class. Every time a person of color dies, the police and prosecutors are assumed to be guilty of racist crimes in advance of any proof. There are demands that the members of the disfavored class should receive less than equal protection and a lower standard of due process than people outside the class. Most of those demands are more temperate than the group of several dozen protesters in New York on December 13 chanting “What do we want? Dead cops! When do we want it? Now!” but they are no more consistent with American notions of justice and fairness.

    To repeat, Caleb: I agree with most of what you say. The Ferguson protesters are quite right to insist that every American be treated equally by the criminal justice system. They are right to get very angry when the system fails to do that. They are right to take vigorous action to correct the injustice. However, I believe they are mistaken when they demand that America offer peace officers — and specifically Darren Wilson — less compassion and legal protection than the protesters would expect to receive themselves. As Christians, we need to remember the Golden Rule!


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