The Eric Garner chokehold case is a tragedy compounded by what already seems to be a lost opportunity. It is obvious from the video of the Garner incident that it was a feat of monstrous negligence by the New York Police Department. They had no excuse to take him into custody and did it brutally, and ignored his claims that he couldn’t breathe. It was an even more outrageous performance by a gang of gonzo American police than the infamous Rodney King beating, which King, at least, survived, and in which he had apparently committed some traffic violations late at night. Garner had not apparently done anything seriously wrong (or perhaps anything wrong at all) and was harassed and baited in broad daylight by a group of policemen, some of whom were dressed like lager louts. There is no reason to believe that the policeman who applied the chokehold intended to kill Garner, but the whole group is guilty of criminal negligence resulting in involuntary manslaughter, and a serious investigation and legal process could establish levels of guilt and appropriate penalties. Instead, the prosecutors gave the infamously obedient grand jury, an institution inserted in the Bill of Rights as an assurance against capricious prosecution and whitewashing of out-of-control officials but that is now a rubber stamp facilitating both, the defense argument — and the grand jury declined to prosecute.
In television interviews, the mother of the deceased has spoken with great eloquence and feeling, the police spokesmen have been Central Casting fascistic oafs full of evasion and Eichmannesque references to rules and orders, and the interviewers, such as Erin Burnett of CNN, have been a refreshing contrast to the jail-’em, flog-’em, lynch-’em hyenas of the Nancy Grace school of Red Queen imposition of the maximum sentence before there is a charge. The demonstrations have been dignified and often quite moving, and the police response has been unexceptionable and has at times shown some sensitivity. Yet the informal leaders of the protest are missing the chance to raise this issue from complaints against the tormenting of a racial minority to the indictment of the entire criminal-justice system that it so desperately deserves and needs. And as I write, the demonstrators appear to have been placated by official assurances of further examination of the case; and public outrage and pressure, which is all that could effect any reform, is subsiding.
African Americans must not imagine that, even though they may be the principal and most frequent victims of the police and prosecution and court and prison systems of the United States, at least on a per capita basis, they are the only group that is victimized. So, more frequently than others would imagine, are wealthy or highly placed whites, such as Martha Stewart, industrialist Alfred Taubman, Scooter Libby (former chief of staff to Vice President Dick Cheney), and the late seven-term U.S. senator Ted Stevens. Hispanics, native people, Asians who are not conspicuously wealthy, and poor whites do not fare appreciably better than African Americans, and everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-old unstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multiethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.
Though evidence of police and prosecution abuse pours in through the media every week, the majority of Americans, personally unaffected by the failings of the system, complacently believes that they live in a society of laws envied by the world. Neither supposition is correct. The United States has six to twelve times as many incarcerated people per capita as other prosperous democracies: Australia, Canada, France, Germany, Japan, and the United Kingdom. This appalling state of affairs has developed gradually over the last 40 years, as the percentage of prosecutions resolved by (very often) abusive applications of the plea-bargain system without a trial has risen from about 80 (an unheard of number in other democratic countries) to 97. The percentage of incarcerated people among the population has multiplied by five in that time, so the U.S. today has 5 percent of the world’s people, but 25 percent of its incarcerated people (and 50 percent of its lawyers – counting only those countries in which a serious professional entry course is required to practice that occupation).
The Supreme Court has sat like a shelf of suet puddings while the criminal-justice system has become a conveyor belt to the country’s bloated and corrupt prison system, and lawyers have become an immense industry, hiding its avarice behind a fog of insipid pieties about the rule of law (which, as the phrase was meant by the authors of the Bill of Rights, can scarcely be said to exist in the U.S.). New York federal judge Jed S. Rakoff wrote in the New York Review of Books on November 20 that the traditional American notion of the day in court is “a mirage” because of the corruption of the plea-bargain system, in which inculpatory evidence is extorted from witnesses in exchange for immunity from prosecution, including for perjury. Every week there is some new exposé of horror stories of prosecutorial abuse, yet prosecutors enjoy an absolute immunity, even when it is revealed that they have committed crimes of obstruction of justice, as in the infamous Connick v. Thompson decision of 2011: An innocent man spent 14 years on death row because prosecutors willfully withheld DNA evidence they knew would, and ultimately did, acquit him; the U.S. Supreme Court narrowly overruled the damage award to the wrongfully convicted Mr. Thompson on a spurious technicality. Less exalted courts are not more condign. Richard Posner in the Circuit Court of Appeals in Chicago and Leo Strine, now gamboling in his new office as chief justice of Delaware, are, to this writer’s perfect and indelible recollection, among the most famous (and publicity-seeking) judges who have little discernible interest at all in coming up with a correct verdict or even in developing a reasonable knowledge of the cases before them. They are the zeitgeist in robes, Nancy Grace with a gavel and a sex change, and they boisterously consider themselves inexhaustible reservoirs of raucously insightful witticisms and aperçus.
The greatest problem is not racist police; the police generally follow orders, especially under a distinguished commissioner such as New York’s William Bratton. It is complacent judicial and media tolerance of a morally bankrupt prosecutocracy. There are scores of millions of Americans of every ethnic, economic, sociological, and age group and every region who are victims of the system as it has mutated; and this is the time for all those shocked at the Garner chokehold tragedy, and other recent police excesses, to link arms and seek comprehensive reform. The principally aggrieved individuals in the current controversies and their advisers should demand equal treatment for defense and prosecution at trial, independently funded and accountable public defenders, a restoration of judges’ discretion in sentencing instead of mandated draconian sentences, appropriate community service in place of severe custodial sentences for non-violent offenses, a requirement that most judges not be ex-prosecutors, the last word before the jury for the defense (as in every other civilized country), and an absolute end to the plea-bargain system as a form of irresistible extortion of inculpatory perjury. They would have the support of much of the media and there would be peaceful demonstrations in every community in America that could probably snowball to involve 100 million people. No one except the bloodstained fraternity of the prosecutors and associations of loopy police chiefs support the status quo, and a demonstration of public righteousness would bring every member of Congress, including the most witless and stentorian parrots of the law-and-order mantra, to their knees, miraculously cured of their policy infirmities.
This would be no Arab Spring. Despite all the coarsening and debasement of American life, Americans are still a good people in pursuit of a virtuous state that was founded and has shed its blood and risked everything for government of, by, and for the people, and that holds the truth that all men and women are created equal and endowed with unalienable rights to be self-evident. Americans could easily come to realize that justice today is not fair and is far from universally accessible. The incipient shame that any reckoning with what a great many in the courts, legislatures, police, legal profession, and media have wrought in this country would leave those responsible for the state of American justice naked, silent, and guilty. It could happen as quickly as a thunderclap. As when the murder of the three civil-rights workers in Mississippi (Chaney, Goodman, and Schwerner) in 1964 transformed the civil-rights debate, and the hacking of the telephone of a kidnapped and murdered girl roused opinion in Great Britain three years ago over media intrusion on telephone calls that had been complacently tolerated by the public until then because of their often amusing revelations, the smug beneficiaries of the present U.S. justice system would be resistless, as the corrupt fallen mighty always are. If not this time, soon.
— Conrad Black is the author of Franklin Delano Roosevelt: Champion of Freedom, Richard M. Nixon: A Life in Full, A Matter of Principle, and Flight of the Eagle: The Grand Strategies That Brought America from Colonial Dependence to World Leadership. He can be reached at firstname.lastname@example.org.