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Recent Posts

The Problems with Using the Criminal Legal System to Fight the Criminal Legal System

Former Dallas police officer Amber Guyger was convicted of murder on Tuesday and sentenced to 10 years in prison, just over a year after shooting and killing a 26-year-old black man named Botham Jean sitting in his apartment. Guyger lived in the same apartment complex as Jean, and after she walked into Jean’s apartment and shot him, unprovoked, she claimed she thought she was entering her own apartment and he had broken in.

The shooting rightfully provoked outrage, as it is among the most heinous instances of police killing unarmed black men across the country. At trial, Guyger testified that she was returning from a long shift, accidentally went to the wrong floor of the apartment complex, walked in, and fired within seconds upon seeing a “silhouetted person” approach her at a “fast-paced” walk.[1] It is plausible that Guyger walked into the wrong apartment by accident, but her subsequent actions were inexcusable. Jean was unarmed, and rather than leave or attempt to diffuse the situation, her first reaction was to shoot. The story fit a familiar pattern: a police officer claiming they were “scared”  and using that as an excuse to shoot an unarmed black man who posed no immediate threat—and, in most instances, no threat at all. Such was the case in the killings of Jean, Michael Brown, Terence Crutcher, Laquan McDonald, Philando Castile, Tamir Rice, Stephon Clark, and countless others.

This fear of black male bodies has been used as justification for their killings again and again. In a rare instance, a Dallas jury made clear it wouldn’t accept this excuse.

The epidemic of police violence is undeniable. This year alone, 660 people have been shot and killed by police.[2] 992 people were killed by police in 2018. As the shootings have gained more attention, particularly since the killing of Michael Brown in Ferguson, Missouri, in 2014, activists have called for accountability. The rise of the Black Lives Matter movement has drawn wide public attention to the problem, and to the institutionalized racism present in law enforcement and prosecutors’ offices.[3] The movement’s influence has provided hope that finally, there will be accountability for a system that consistently violates the rights of people of color and the poor. The question we are left with is what does accountability looks like.

In the death of Botham Jean, accountability has meant the prosecution of Guyger. The focus on prosecuting Guyger as an expression of accountability is understandable. The criminal legal system has engrained in Americans that criminal punishment is the only legitimate way to express disapproval of violence.

However, this approach to accountability does nothing to address the substantive root causes behind why the violence occurred. It is, in many ways, a cop-out: it allows the unjust criminal legal system to capitalize off of legitimate anger by the public and place blame on the perpetrator of violence, rather than the system itself. The system deserves the majority of the blame, but in the prosecution of Guyger, the system and its supporters have effectively shifted the blame to a single actor—avoiding accountability and ensuring more injustices are sure to come. Ta-Nehisi Coates aptly explained the trouble with a prosecutorial approach to violence in his criticism of the Obama Justice Department’s decision to seek the death penalty against Dylann Roof, a white supremacist who murdered nine members of a black church in Charleston, South Carolina:

The hammer of criminal justice is the preferred tool of a society that has run out of ideas. In this sense, Roof is little more than a human sacrifice to The Gods of Doing Nothing. Leave aside actual substantive policy. In a country where unapologetic slaveholders and regressive white supremacists still, at this late date, adorn our state capitals and our highest institutions of learning, it is bizarre to kill a man who acted in their spirit. And killing Roof, like the business of the capital punishment itself, ensures that innocent people will be executed. The need to extract vengeance cannot always be exact. It is all but certain that a disproportionate number of those who pay for this lack of precision will not look like Dylann Roof.[4]

One need not feel sympathy for Guyger to recognize that she is a useful scapegoat for a system of law enforcement and prosecution that will happily throw one it its own to “The Gods of Doing Nothing” in order to avoid systemic change. In the time since Guyger killed Jean just one year ago, Texas police officers have killed 84 people. Justice for Jean, and justice for all, should be focused on accountability for that system.

There are far better responses to Jean’s killing than those that resort to the criminal legal system. The most obvious solution is to scale back and eventually abolish what has essentially become an occupying force in minority communities.

The activism of Critical Resistance in Oakland, California, provides a good example of how to respond to police killings with systemic solutions. When San Francisco police killed a 19-year-old undocumented resident named Adolfo Delgado, firing 99 shots at him while he hid to avoid deportation, the organization responded with a simple message: “to stop police murders, abolish the police.”[5]

The title is provocative, but the group listed concrete demands:

The violence of policing must be addressed by eliminating gang injunctions, defunding police departments, reducing the number of cops patrolling our streets, stripping the power of police officers’ associations, ending police militarization programs such as Urban Shield, and rejecting the purchase of new weapons or surveillance technology. It is efforts such as these that will reduce the police’s ability to harass, harm, and kill our community members, and ultimately, bring us closer to a vision where our communities live free from state violence.

Shootings in other communities have prompted similar responses, with actual results. For example, a recent study found that Austin, Texas, has the highest number of police killings per capital following mental health calls.[6] In a particularly jarring incident before the study was released, an Austin police officer shot and killed a naked, unarmed black teenager who was exhibiting symptoms of a mental health crisis.[7] The officer was fired, though not criminally indicted. Rather, under pressure from local activists Austin’s city council has invested in a program that sends mental health professionals, rather than police, to attend to mental health calls.[8] Of course, there is still a long way to go in Austin, where the city council just approved the police force’s request to increase in size.[9] However, activists in the city have shown that they can be successful in calling for a type of accountability that reshapes at least part of the system.

Prosecuting Amber Guyger will not change the negative impact the Dallas police have on the poor and communities of color. However, fighting for systemic change that fundamentally alters the system, such as has been done in Austin and Oakland, would provide true justice for Jean and residents of Dallas.

Guyger rightfully outraged activists during her testimony, because despite showing little (or really any) remorse after killing Jean, she showed emotion on stage when faced with a murder charge. The reaction—anger displayed not at the killing, but at a loss of privilege she never expected to lose—was repulsive to many.

As activist Elisabeth Epps noted following Guyger’s testimony: “Not 1 real teardrop in 2 mins of fake hiccups. She can’t even summon the weaponized white tears that usually accompany white fragility. Repulsive. Justice is not sending #BothamJean’s racist killer #AmberGuyger to a cage. Justice would be abolishing the police.”[10]

A common response to those in favor of criminal prosecution of Guyger and other officers is why not both?

On an emotional level, this is a fair response. Police officers are so rarely prosecuted, or even indicted, for their violence—despite that, in most cases, grand juries will “indict a ham sandwich”—it can feel like the system is finally working against the very people it is designed to work for. And because healing is important in response to violence, any future must employ restorative justice mechanisms that bring together victims and offenders to determine how the offender can provide some sort of healing.

It was clear that Jean’s family was open to some sort of restorative mechanism beyond, or in some cases in place of, the criminal legal system. Jean’s brother, Brandt Jean, said that he didn’t want Guyger to go to jail,[11] while his mother stated in a press conference that, “[t]here’s much more that needs to be done by the city of Dallas. The corruption that we saw during this process must stop.”[12] (It is important to note that Brandt Jean’s expression of forgiveness should not be used as an excuse to do nothing about systemic abuses.[13])

Unfortunately, the system we have is not designed to be restorative—rather, it is vengeance-driven. And the problem with embracing a vengeance-driven system is that, as Coates noted, “the need to extract vengeance cannot always be exact.”

Prosecuting Guyger legitimizes a racist system. It allows law enforcement to claim to care about racism in the system while not actually fixing anything. It provides plausible deniability when the system inevitably retreats to its racist, classist ways—victimizing mostly communities of color and the poor with over-policing and over-prosecution. The same prosecutors who jailed Guyger will use their power and newfound legitimacy to jail far more poor people and people of color than perpetrators of racist violence.

Even portions of the trial itself have legitimized improper prosecutorial tactics. Self-proclaimed racial justice advocates were cheerleaders for the slut-shaming of Guyger, who it was revealed was having a relationship with her patrol partner.[14] Other activists called out Gugyer for having sex days after the shooting, following a pattern of prosecutors using charged language to ignore the fact that people have tremendously different reactions to trauma in different situations.

Many activists regard Guyger’s prison sentence as a win. She is now subject to a punishment that police officers hardly ever see—a punishment typically endured by communities like Botham Jean’s.

But even now that Guyger is locked up, there will be no more justice than there was the day before. The police will still occupy communities of color and the poor, bombarding them with expressions of state violence. The criminal legal system will have an example of the time it worked to “fight racism,” only to lock up more black and brown people in the future.

As prison abolitionist Mariame Kaba wrote in response to Guyger’s verdict, “Abolition demands no cages for anyone. It’s really that simple and that complex. Prison in the meantime is not abolitionist.”[15]

It is human nature to want accountability for a senseless killing. And communities of color and the poor have dealt with a far harsher and more unjust version of accountability than any police officer. But true accountability starts with finally creating structural change that scales back and eventually abolishes the racist, classist occupying force that is the police and the prison system. It will never come if we are willing to legitimize the carceral system just to extract vengeance in the meantime.

[1] Tanya Ballard Brown, ‘I Hate Myself,’ Former Dallas Police Officer Who Killed Neighbor Tells Jurors, NPR (Sept. 27, 2019), https://www.npr.org/2019/09/27/765122240/i-hate-myself-former-dallas-police-officer-tells-jurors-during-murder-trial.

[2] Fatal Force, Wash. Post (last visited Sept. 29, 2019), https://www.washingtonpost.com/graphics/2019/national/police-shootings-2019/.

[3] Frank Leon Roberts, How Black Lives Matter Changed the Way Americans Fight for Freedom, ACLU (Jul. 13, 2018), https://www.aclu.org/blog/racial-justice/race-and-criminal-justice/how-black-lives-matter-changed-way-americans-fight.

[4] Ta-Nehisi Coates, Killing Dylann Roof, Atlantic (May 26, 2016), https://www.theatlantic.com/politics/archive/2016/05/dylann-roof-death-penalty/484274/.

[5] To Stop Police Murders, Abolish the Police, Critical Resistance (Mar. 19, 2018), http://criticalresistance.org/to-stop-police-murders-abolish-the-police/.

[6] Heather Osbourne, Austin Leads in Police Shootings During Mental Health Calls, Study Finds, Austin Am.-Statesman (Sept. 24, 2019), https://www.statesman.com/news/20190924/austin-leads-in-police-shootings-during-mental-health-calls-study-finds.

[7] Philip Jankowski, Austin Police Fire Officer Who Fatally Shot Naked Teen David Joseph, Austin Am.-Statesman (Sept. 27, 2018), https://www.statesman.com/NEWS/20160922/Austin-police-fire-officer-who-fatally-shot-naked-teen-David-Joseph.

[8] Yoojin Cho, Austin Approves Spending Millions on Improving Mental Health Call Response, KXAN (Sept. 11, 2019), https://www.kxan.com/news/local/austin/city-of-austin-budget-makes-effort-to-focus-on-mental-health-improvements/.

[9] Philip Jankowski, Austin City Council Approves Record $4.2 Billion Budget, Austin Am.-Statesman (Sept. 10, 2019), https://www.statesman.com/news/20190910/austin-city-council-approves-record-42-billion-budget.

[10] Elizabeth epps is tired. (@elisabeth), Twitter (Sept. 27, 2019, 11:46 AM CT), https://twitter.com/elisabeth/status/1177625470273146880.

[11] ABC News (@ABC), Twitter (Oct. 2, 2019, 4:42 PM CT), https://twitter.com/ABC/status/1179511887500726272.

[12] Marjorie Owens, ‘There’s Gotta be a Better Day,’ Says Botham Jean’s Mother after Amber Guyger Sentencing, WFAA (Oct. 2, 2019), https://www.wfaa.com/article/news/special-reports/botham-jean/theres-gotta-be-a-better-day-says-botham-jeans-mother-after-amber-guyger-sentencing.

[13] Jemar Tisby, White Christians, Do Not Cheapen the Hug and Message of Forgiveness from Botham Jean’s Brother, Wash. Post (Oct. 3, 2019, 11:36 AM CT), https://www.washingtonpost.com/religion/2019/10/03/white-christians-do-not-cheapen-hug-message-forgiveness-botham-jeans-brother.

[14] Cory Provost (@coryprovost), Twitter (Sept. 27, 2019, 11:26 AM CT), https://twitter.com/coryprovost/status/1177620450979004417.

[15] #FreeTondalao (@prisonculture), Twitter (Oct. 1, 2019, 4:38 PM CT), https://twitter.com/prisonculture/status/1179148524795154433.

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