The Verdict on White Justice for Black Life

Guest Author, Elias Ortega-Aponte is Assistant Professor of Afro-Latinos/a Religions and Cultural Studies at Drew University Theological School in Madison, NJ.

Three days after the shooting of Mike Brown, President Obama issued a statement addressing the events. In this August 12 statement, the president urged the people of Ferguson, Missouri, and the nation, to remember Brown’s life “through reflection and understanding” and not give into passions. The call: to keep composed and not lash out.  The President also said that, “We should comfort each other and talk with one another in a way that heals, not in a way that wounds.” Either spoken by our leaders or by others, such words are words often heard by communities of color across the United States-we are often asked to turn the other cheek in the hopes of cashing the check of American Justice, a check that in the words of Martin Luther King Jr, “has come back marked ‘insufficient funds.’”

Yesterday, not long after the grand jury’s decision that there was not sufficient evidence to indict Officer Darren Wilson,  the president addressed the nation one more time. In this occasion he also called for calmness and made an appeal to heed the desire of Mike Brown’s parents for peace in response to the grand jury’s decision.  He reminded the nation, and I would dare to say that he particularly reminded people of color, of the rule of law. In his words, “First and foremost, we are a nation built on the rule of law.  And so we need to accept that this decision was the grand jury’s to make.”* Such pronouncements grabbed my attention for two reasons. The first relates to the operations of grand juries. The second relates to the nature of the rule of law, its implications for communities of color, and the President’s appeal for citizens, and in this case for citizens of color to follow the law that founded this nation.

What are grand juries charged to do? A grand jury is circumscribed to determining whether or not there is probable cause to prosecute someone suspected of a felony crime. In deciding whether sufficient evidence exists to charge someone with a crime, grand juries play a central role in the application of justice under the United States’ judicial system. While a grand jury’s judgment does not determine the guilt or innocence of an individual suspected of a felony crime, their discretion can and indeed does shape the nature of justice as it determines whether an individual stands trial. A judgment of probable cause is not a guilty verdict; but it points for a need of more investigation and reflection to determine whether or not criminal action took place.

We need to keep in mind that a grand jury operates under a different set of guidelines than the ones that govern trial juries. For example, rules of evidence necessary for trial juries do not apply to grand juries: defense lawyers cannot present evidence, the proceedings are run by prosecutors without the presence of a judge, members of the jury are not screened for biases, and the proceedings discussions and transcripts remain secret. Interesting, Prosecuting Attorney Robert McCulloch decided to lift the veil of secrecy in this case and made available the evidence presented to the grand jury in the hopes to put at ease concerns over bias in the process. But is this enough? For a community in which the rule of law has routinely been used to criminalize and dismiss claims of justice, this simply will not do. In the past, grand juries have been utilized to silence dissent, infiltrate organizations, and disrupt movements. Are we to blame if we remain suspicious? Are we as communities of color routinely under police surveillance, marked as criminals, who continually bury our own as a result of senseless police violence to be pacified when we are told to keep calm?

The President’s remarks also called my attention to his continual appeal to the rule of law. His first words were for the people to understand the challenges and sacrifices police officers face. “Understand, our police officers put their lives on the line for us every single day.  They’ve got a tough job to do to maintain public safety and hold accountable those who break the law.” I would like to understand with clarity and precision how does the President understand  “maintaining public safety” and “hold accountable.” Some are called to account, but not all. Perhaps, at this point we do well to recall Rahm Emanuel’s 2013 apology for the decades of  brutalization of Police Commander Jon Burge? Or should we also take a look at Eric Holder’s record during his term as Attorney General? My sense is that President Obama, given the various political posts he occupied in Illinois from 1997 onwards, and his connection with Rahm Emanuel and Eric Holder has intimate knowledge with these events.  

What troubled me the most in the President’s speech was his desire to see the ongoing problems faced by communities of color and the non-indictment decision of a white police officer on the killing of a black man as separate issues. Although, in his speech President Obama speaks to the fact that the legacy of racial discrimination has seeded deep distrust in communities of color. This is indeed true. He follows this acknowledgement by saying “And this is tragic, because nobody needs good policing more than poor communities with higher crime rates.” This statement signals a shift to victim blaming.

By shifting the terrain of the conversation, not to the killing of an unarmed black teenager but to the need to securitize poor communities with high crime rates, he asks communities of color to carry the wages of white violence perpetrated against them. Not a word from the President on how to break the matrix of lack of educational opportunities, limited employment option, ongoing criminalization that contributes to crime rates. Furthermore, it is ironic to hear a call for good policing in times of decreasing violent crimes.  

President Obama also encouraged the nation to take hope in the fact that improvements have been made at it pertains to race relations in this nation. He said, “And to deny that progress I think is to deny America’s capacity for change.” He should be applauded for his acknowledgement that the problems impacting communities color are not made up. But he should also be critically engaged for his desire to separate those problems from this particular grand jury decision. I am not quite clear as to why he chose the following words to describe the application of law nor to what particular issues he is referring: “there are issues in which the law too often feels as if it is being applied in discriminatory fashion.” These are not separate issues; and at least for me, there is no room for “too often feels” in light of the Prison-Industrial Complex that warehouses black and brown bodies at an alarming rate.

These are not times to engage in rhetorical flourishings, nor to downplay the reality that the law is continually applied in discriminatory fashion to prosecute people of color in ways not used against white people. For example, Marissa Alexander’s attempt to invoke Florida’s Stand Your Ground Law as defense for firing at her estranged husband who had a history of domestic abuse was denied. She was sentenced to serve a term of 20 years imprisonment. On November 24, she entered a plea bargain. Such a deal will not only reduce her sentence to three years concurrent with time already served; it will also extended consequences of a criminal record. On the other hand, George Zimmerman, accused of the assassination of Trayvon Martin was able to rely successful on a Stand Your Ground Defense. If we follow President Obama’s view, these two cases are not connected.  In spite of evidence to the contrary, we can see that the intersection of race, gender, and class and the power differentials that these intersections produce in how the actions of the victims and victimizers are understood, has everything to do with the outcome of each case. Discrepancies are to be understood as feelings.  

This optimism expressed by President Obama should be tempered by the words of Frederick Douglass who speaking on July 5, 1852 said that, “Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future.” Douglass’s words offer a sharp contrast to the President’s; contrast that communities of color know all too well.  

I will agree with the President on this one thing, that this nation is founded on the rule of law but my agreement is based on a different logic. Appeals to the rule of law have played a foundational role, if by that we mean that the law as Colin Dayan has argued so powerfully, is a “white dog” that “ritualized the making and unmaking of people”–the making of white people and the unmaking of color folk. Explaining the evolution of American law, Dayan explains that “Legal thought relied on a set of fictions that rendered the meaning of persons shifting and tentative: whether in creating slaves as persons in law and criminals as dead in law, or in the perpetual re-creation of the rightless entity.” Clearly, the disposability of people of color under the law has been a constant of our national justice system.  Once we enter deeply into the house created by the law, “We see humans turned into things, ghosts into persons, and corpses into spirits. The intriguing thing is the thoroughly matter-of-fact way these phenomena are dealt with legally.” Yes, this is the country that the rule of law has built, a house where the descendents of those once enslaved, their children and their children’s children are continually turned from people into corpses under the law, because of the law, and those who enforce it, are protected by the law. The grand jury’s decision in Ferguson, Missouri is just another reminder.

Explore More . . .

Baldwin, James. Collected Essays. New York: Library of America, 1998.

Danticat, Edwidge. Create Dangerously: The Immigrant Artist at Work. Princeton: Princeton University Press, 2010.

Dayan, Colin. The Law Is a White Dog: How Legal Rituals Make and Unmake Persons. Princeton, NJ: Princeton University Press, 2011.

Gates, Henry Louis, and Du Bois W. E. B. The World and Africa and Color and Democracy (The Oxford W.E.B. Du Bois). Oxford: Oxford University Press, USA, 2007.