When the jury returned guilty verdicts for the three men who murdered Ahmaud Arbery, there was a collective sense of relief; justice had been done. Our system was working. There was clear evidence of guilt beyond a reasonable doubt and the jury’s verdicts demonstrated that they had deliberated over the evidence and reached a thoughtful, well-reasoned verdict. This wasn't a knee jerk deference to the moment. The justice done was very real; but it almost didn’t happen. And in too many other cases, it never happens at all.
Casting a wider lens, it’s impossible to escape the conclusion that our system doesn’t always achieve justice.
Each of the defendants on trial for Arbery’s murder was accused of multiple murder charges based on different sets of facts and provisions of Georgia law. Travis McMichael, the triggerman, was convicted on all of the murder charges against him, including a count of intentional malice murder. His father, who was with him but did not pull the trigger, was acquitted on the intentional murder charge, but convicted on multiple counts of felony murder, including one for aggravated assault with the firearm he knew his son had with him the day Arbery was killed (he had yelled at Travis to grab it as they raced to their truck.) And Roddie Bryant, who joined the chase, was acquitted on the felony murder count involving McMichael’s gun, but convicted on ones involving the use of the vehicles to assault and false imprisonment of Arbery.
Justice was possible here because there was videotape of the crime in progress. But, casting a wider lens, it’s impossible to escape the conclusion that our system doesn’t always achieve justice. We cannot rest on the verdicts in Arbery’s murder as a sign that justice has come to Georgia, or to the deep south, or to our country. Because it hasn’t. There is still so much work to be done.
A year and a half out from George Floyd’s murder at the hands of a Minneapolis police officer, Congress still hasn’t passed the criminal justice reform bill named for him that would provide greater accountability for police misconduct, limit qualified immunity, prohibit dangerous police practices like chokeholds and increase transparency. And those reforms are essential if we are going to advance our criminal justice system.
It is difficult to hold police officers accountable because of the shield that qualified immunity provides them. While it’s important to give officers who are doing dangerous jobs in a responsible fashion the protection they deserve, such protection shouldn’t be extended to those who believe a gun and a badge gives them the right to put a knee on a man’s neck until he is no longer breathing. Or to the three police officers whose body cameras all fell off as they used a carotid hold on a gentle violinist, Elijah McLain, who politely told them he was having trouble breathing and died of cardiac arrest following their manhandling and paramedics' “therapeutic” dose of ketamine. Then there was Breonna Taylor, who died as a police officer fired into her apartment without a clear line of sight. And too many others.
Yet the broad nature of qualified immunity protects law enforcement from accountability for conduct we all know is wrong. This has to be fixed.
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Injustice doesn’t end there. Our prisons are a nightmare. And it’s not just celebrity prisoners like Ghislaine Maxwell who complain of inhumane conditions. The Department Of Justice sued Alabama — during the Trump administration — over conditions in all of the state’s men’s prisons, alleging they violate the Eighth Amendment’s prohibition against cruel and unusual punishment. The DOJ alleged that prisoners were subjected to “excessive force” by guards and sexual violence by guards and other prisoners. The violations were characterized as “severe” and “systemic.” Alabama’s prisons have everything from hygiene issues, like the presence of open sewage in prison yards, to the highest murder rates in the country. DOJ has brought actions against numerous other jails and prisons including, in September, Georgia’s prison system.
Our country puts too many people in prison for too long. Despite being just 5 percent of the world’s populate, the U.S. incarcerates around 25 percent of the world’s prisoners. We lead the world with approximately 639 people per 100,000 in custody. Lengthy prison sentences are responsible for much of that growth.
There was a time when the focus was on rehabilitating people in prison, nearly all of whom will return to their communities one day. But, since the initiation of the war on drugs in the last century, America’s prisons have been a vehicle for punishment, retribution and incapacitation; warehousing people with limited access to the education and drug treatment they need if they are to succeed when they reenter society. Instead of focusing on housing, health, food security and job training to prepare people to lead productive lives, they are stigmatized by their criminal history long after they’ve finished serving their sentences, creating a vicious cycle of failure and reincarceration that doesn’t serve any of us very well, unless you count the politicians who campaign on being tough on crime.
It’s one thing to convict the men who murdered Ahmaud Arbery and another to claim that justice is upon us.
Always, in our criminal justice system, there is the thread of knowledge that it impacts communities of color disproportionately. Black men are overrepresented in prison and jail. Data suggests this is more reflective of over-policing in poor communities and bias by decision makers than it is of greater criminality. So it’s one thing to convict the men who murdered Ahmaud Arbery and another to claim that justice is upon us.
While justice ultimately came for Mr. Arbery, it came too late. It should have come while he was still alive. It should have come without the need to indict a prosecutor who delayed it and it shouldn’t have taken publication of a video for law enforcement to treat the death as a crime. It should have come as part of a transformation of our society that permitted us, instead of politicizing critical race theory, to understand and confront our shortcomings though the lens of the racial injustice that permeates American history.
This news cycle is over and Arbery will slip out of our collective consciousness if we let him. But we all bear a measure of responsibility for the difficult work of ending systemic injustice. As a former prosecutor, even one who advocated for criminal justice reform while in office, I feel this very heavily. We have an obligation to the past, to the present and to the future to relentlessly insist on and work towards criminal justice reform — unless we are willing to accept injustice and inevitably, watch while more lives like Ahmaud Arbery’s are needlessly destroyed.