Many people are enraged that Darren Wilson has not been indicted for having shot Michael Brown. I do not begrudge them their fury, but I urge them to see this as an opportunity rather than a defeat, and to consider what would have happened had the result been different.
To put it simply, if Wilson had been indicted, his prosecution would have eliminated any hope of meaningful reform.
The very premise of the criminal law is that the system which created the law is fundamentally sound.
In this country, the criminal law is invoked as a solution for disorder, complete in and of itself. The mere existence of the prosecution would have been interpreted as the solution to the problem of Brown’s shooting, particularly in the wider political community.
Wilson’s prosecution would have been seen as confirmation that police practices are perfectly adequate, and that society needs only punish the occasional officer who breaks the rules.
In that respect, prosecuting Wilson absolves society from claiming responsibility for the cultural milieu we have created. We say to ourselves, “Occasionally, a few people make a few mistakes, sometimes quite a lot of mistakes,” and leave it at that.
The world which produced these people -- the unspoken and unquestioned assumptions that have achieved the exalted status of common sense -- is simply out of bounds. We no more question it than we would question the morning sun. The system is not only glorious, it is gloriously self-correcting.
And that’s the mistake. Since at least the late 1960s, Democrats and Republicans in all three branches of the federal government and all fifty states have steadily reshaped the law to enlarge the government’s power to monitor, search, stop, arrest, prosecute, imprison, and execute those who fall outside the magic circle that separates us from them.
It is this orientation that transformed the police into invading armies, destroyed so many communities, disenfranchised so many citizens, and built so many prisons, filling them far beyond capacity with a disproportionate number of African-American and Latino men (and women, to a lesser extent). Ultimately, it is this orientation that led to Michael Brown’s death.
Because the problem is systemic, so must be the solution.
The shooting of Michael Brown was the inevitable product of the same punitive turn in American life that produced the War on Drugs, the militarization of local police, and mass incarceration.
Rather than a defeat for justice, the decision by the Grand Jury is a claxon call for reform, if only we listen.
Joseph Margulies is a civil rights attorney and visiting professor of Law and Government at Cornell University. He is working on a new book about criminal justice reform.