Friday, November 05, 2010

Not Worth a Dog's Dinner

An Oakland cop who shot an unarmed and restrained Black man on a subway platform received two years in prison after being convicted of involuntary manslaughter. It was the shortest possible sentence absent probation (the harshest potential sentence was 14 years). The involuntary manslaughter rap itself was itself the most lenient charge Grant Mehserle could have been convicted of -- a fact which also led to considerable unrest when the verdict came down.

As Oscar Grant's family pointed out, this is less time than Michael Vick was sentenced to for his dog-fighting ring -- thus adding another name to the list of humans we value dogs more than. What is the victim's family supposed to think about that? Such is the nation we live in -- the same one, incidentally, which sentences men who abuse and kill their wives more leniently than women who kill their abusers. Nowhere more than in the criminal realm to we express more clearly the notion of whose bodies matter more, and whose bodies matter less; which criminals we are inclined to give the benefit of the doubt to, and which ones we take it upon ourselves to lock away for extra time.


N. Friedman said...

The New York Times report you cite first indicates that the shooting was, in the view of the judge, accidental. "In making his decision during the highly charged, 3½-hour hearing, Perry threw out a gun enhancement that could have added as much as 10 years in prison and said there was overwhelming evidence that it was an accidental shooting." I understand from reading the article and from other reading that there is video - actually, more than one video, of the incident. Presumably, there was something in the videos and from the testimony which made the judge and jury see the matter remarkably different than you see it.

In fact, "The judge rebuked prosecutors for arguing that Mehserle intentionally shot Grant, saying there wasn't any evidence to back up that allegation. Perry also said he believed the videos showed Grant resisted arrest and many people, including Mehserle's fellow officers and Grant's friends, contributed to the tragedy." Do you say that judge is wrong? I would think this point is rather relevant to understanding what occurred.

I am not inclined to wax elegant on such matters. There may have been a murder here. There may have been a travesty of justice here. However, none of us has better knowledge about the case than the judge did. So, if he thought it was an accident, that point cannot be simply waved by, as if his view were of no import. That does not make the judge and jury right, of course. It does, however, raise a serious question about your theory, unless you think the judge (not to mention the jury) is so biased that he could not see straight.

David Schraub said...

The determination that the shooting is accidental is why this was involuntary manslaughter, and not Murder 2. That's what involuntary manslaughter is -- unintentional but grossly negligent homicide. So saying "it was accidental" doesn't explain the decision to sentence at the extreme low end of the sentencing guidelines for involuntary manslaughter. In other words, even granting "it was accidental", I think our intuitive notions of justice would suggest that the accidental but grossly negligent shooting of an unarmed and restrained man ought to be punished more harshly than participating in dog fighting.

I also disagree with the judge that there was no evidence that the shooting wasn't accidental. The prosecution did present evidence -- namely, it argued that the difference in weight between a taser and a handgun, and the fact that there are safety mechanisms built into a handgun that should tip you off that this is what you're firing (plus the fact that we're dealing with an officer and he should in fact know where the taser versus the handgun is located on his body) all indicate a volitional act. A jury rejected that argument, which is fine -- but that's (a) not no evidence and (b) why he was convicted of involuntary manslaughter instead of a more serious crime. Even giving the judge his whole argument, it's unclear why an alleged overextension by the prosecution on the charging side of things that was already corrected by the jury should come into play in sentencing.

In general, there is plenty of empirical evidence documenting that (a) we sentence white criminals more leniently than black criminals and (b) we sentence criminals whose victims are black more leniently than criminals whose victims are white. This seems to fit that shoe beautifully, and the fact that (as in, oh, say, virtually every criminal case) there are ambiguous facts, interpretations, and narratives that cross-cut in favor of both harsher and less harsh decisions simply puts us in the realm of aversive racism (see the various studies by Gaertner and Dovidio).

N. Friedman said...


In the legal system, you will come to know that, not withstanding the specific rulings - manslaughter, negligent homicide, etc. - in a case, judges and juries have their own systems of deciding how blameworthy an accused is. Clearly, the judge thought that, while there was some degree of culpability, it was at the very low end of the spectrum. Emphasis on the word "accidental" tells me a lot about the judge's thinking.

I take you to be saying that you know better than the judge about the nature and caliber of the evidence and which evidence was real and which was BS. That rather shocks me, given that you are in Chicago listening reading about the case.

You mention that the weight of a gun and taser differ. Having lived in the world, I have mixed many similarly shaped things up notwithstanding weight differences. I thus take that sort of evidence as the type that a court might view as pretty close to trivial - not substantive. As for the safety, while I am not a gun person, I am well aware that the reason that safeties are on guns is that people act impulsively. Hence, I also take that sort of evidence, regarding someone who is acting under pressure, as trivial. Which is to say, I cannot imagine how you could see that sort of evidence the way you are seeing it unless that is the conclusion you want to see, not what the evidence itself shows.

I would be interested in knowing how blacks are sentenced, in comparison to whites, when there is a finding of negligent homicide. I do, however, tend to agree with you that blacks are treated more harshly by the legal system than are whites. However, I do not, based on what I have read, see the instant case as a stellar example of the phenomena. It might be but, thus far, you have not exactly provided strong grounds for thinking so or, for that matter, thinking the judge and jury are even mistaken.

David Schraub said...

(For the record, I've seen the video in question of the events).

This was a person who was given specific training in the usage of a gun versus a taser and the proper safety thereto. He also presumably was trained to not crack under pressure, and given the grave responsibilities he was entrusted with, we can rightfully call him negligent if he does crack under pressure.

Again, what we have (as in all criminal trials) are ambiguous facts which cross-cut in favor or against mitigation or strictness, and which can be interpreted any number of ways. It's not that one can't construct a narrative legitimizing a range of different sentences; it's that, given that discretion, courts consistently apply the harshest narratives in cases of white victims and black defendants, and the most lax ones in cases of white defendants and black victims. In this case, the could rationalize either a two year or a 14 year sentence -- it elected to do the former. In the next ten cases -- all with black defendants -- the court probably could rationalize either a two year or a 14 year sentence, and will likely pick the latter. The fact that we might be able to justify each sentence individually doesn't actually resolve the moral problem.

Again, I can take the strongest pro-judge side here consistent with the jury ruling, and still say "grossly negligent but accidental shooting of an unarmed, restrained man ought to be punished more harshly than partaking in dogfighting". And I do say that, and I think it is emblematic of systematic shortfalls in our criminal justice system that this isn't a given.

N. Friedman said...


You are correct that officers are supposed to be trained. Even trained people make mistakes. That is, as we know, called negligence. The judge, evidently, did not see the matter as you do.

Having practiced law for 30 years, I can merely note that, in most criminal trial, we are not talking the type of subtleties you mention in this case. The current case seems, based on what I have read and seen, rather paradigmatic of a case with essentially no evidence of anything other than a mistake.

You mentioned, rather specifically, the weight of the taser vs. a gun. Let's address its relevance, as an attorney would, dispassionately and in an effort to help a client. By itself, the evidence shows a mistake was made and, had the officer been more careful, the mistake might somehow have been avoided and, without other evidence, shows no greater degree of culpability. Or, in simple terms, it was, at most, consistent with the Judge's assertion that the shooting was "accidental." So taken alone, it is not evidence that contradicts what the judge says. And, no amount of spin changes that.

The safety issue does raise the issue of training. It, however, does not help show that the shooting was other than "accidental." The same analysis applies here as applied to the weight.

Taken together, neither points of evidence you raise could reasonably be construed as evidence of more than an accident. So, were I the DA, I would know that, if this is my best, it is not good enough. Other evidence, about which you have pointed to none, would be needed to turn that evidence into evidence that might reasonably be construed as undermining the Judge's view.

You write: "it's that, given that discretion, courts consistently apply the harshest narratives in cases of white victims and black defendants, and the most lax ones in cases of white defendants and black victims." That is probably so but it is not so in every case. The trouble here is that there is an absence of evidence - or, at least, you have not pointed any out - which suggests that any impartial jury or judge would weigh the evidence as other than a terrible accident for which the killer is remorseful. And again: the evidence that you think suggests that something more sinister is at work whereby a black would be more harshly treated than a white one strikes me as you reading into evidence things which could not reasonably be construed the way you are construing them. The key difference here is the word "Officer." That cannot be left out of your thinking, if you are thinking dispassionately.

One problem I have with you - and not just here - is that you see race in things where there are more natural explanations for which the word "race" is not needed to provide a complete explanation. Or, in a word, you fail to apply Occam's razor in your thinking. The most natural explanation, even if the officer was treated less harshly than others might be is that he is an officer - a group which judges nearly always give the benefit of the doubt. In this case, if all there is to go on is the weight of a tazor vs. a gun and the failure to recognize a device having a safety is not a tazor, you basically have nothing at all. So, we do not even get to the gate of talking about race in a serious way.

David Schraub said...

I disagree with your cavalier dismissal regarding the weight of the weight evidence. I also disagree with that race is categorically ridiculous to consider when comparing the outcomes in an accidental but negligent shooting where the judge went to the bottom of the guidelines, versus a dogfighting case in which the judge gave a harsher sentence than the prosecutors asked for. One problem I have with most Americans (not just you) is that you're always looking for an excuse not to consider race as a potential factor, even when it is standing in the plaza doing topless jumping jacks to try and draw attention to itself. Given the history of the American criminal justice system, "race" is in fact one of the more simple explanations one could give for these sorts of disparities. "Simple" and "comfortable" are not synonymous.

Your entire argument, which rests on a finding that the shooting was "accidental", is immaterial, since "accidental" still puts us in the realm of involuntary manslaughter. But involuntary manslaughter can be sentenced up to 14 years. So repeating that it was "accidental" doesn't explain why the judge selected to give 2 years instead of 6, or 8, or 14. If it wasn't "accidental", that wouldn't mean he gets the top of the involuntary manslaughter guidelines -- it means he's on the hook for voluntary manslaughter or murder 2 (with whatever guidelines are available for those crimes).

And while I agree that part of it is "judges tend to give officers the benefit of the doubt", given the prevalence of police brutality against Black people, I don't necessarily think that explanation is exclusive of judges also implicitly devaluing the lives of Black victims (who probably had it coming anyway) and White perpetrators (who made one mistake and don't deserve to pay for it for the rest of their lives). I think it is a legitimate query whether or not we should be more lenient towards people who are entrusted with the public right and responsibility to dispense lethal force, and are consequently specifically trained in its use (including in high pressure situations). The outcome of that policy decision is that disproportionately white killers of disproportionately black victims get relaxed sentences -- and I think it is perfectly reasonable to attribute that to aversive racism (Gaertner and Dovidio).

joe said...

Anytime there is a discussion of this or that particular example there will be an argument like the above. It's the weakness of anecdotes, they're basically where the truth goes to be obscured. Fortunately, we need only look beyond the single data point and focus on aggregate statistics to see sentencing disparities by race.

Which, if you care about the racial impact of state action, is an extremely strong point against allowing much discretion at all.

(The other problem with this anecdotal approach is that it encourages a "nail up the bastard cop" approach. That's certainly the path of least resistance for our society, but I'd say it would be far more constructive to give more defendants a break in sentencing, preferably by lowering the duration of guidelines sentences overall. I'd say more on this point but I think our expensive and expansive prison system speaks for itself.)

chingona said...

Given that it's extremely rare for police shootings to be found to be unjustified even in internal proceedings and even rarer for police to actually be prosecuted, I'd hardly call "nail the bastard cop" the path of least resistance in our society.

joe said...

You're smart, so I trust you know what I meant. In extremely heinous instances (and in this case a jury did find felonious criminal conduct) mainstream white society has no need to circle the wagons around the individual wrongdoer. Easier just to write it off as "a few bad apples," wag our fingers, and continue on oblivious to the larger structural issues of inequality.

David Schraub said...

As enamored as I am with the "contradiction closing case" argument, chingona is correct that when it comes to police brutality, we don't seem to be going down that road. We don't take the worst of the worst (or at least highest profile) police abusers and throw the book at them -- they get off with limited punishment, same as everyone else.

joe said...

I was perhaps unclear. I am not writing descriptively of what happened here and now so much as I am writing predictively: Sooner or later the goalposts may once again shift when the dominant group concludes some individual isn't worth the effort of defending. That is the problem with the anecdotal approach, that it encourages "nail the bastard" thinking. You can say that "nail the bastard" ultimately didn't win out in the present circumstance, but debating whether the bastard was appropriately nailed on a case-by-base basis is exactly what I'm wary of.

Barry Deutsch said...

"The involuntary manslaughter rap itself was itself the most lenient charge Grant could have been convicted of..."

Not that your intent isn't clear, but that should say Mehserle, not Grant.

Anonymous said...

David, I don't think you get the sentencing process.

The jury came back with a charge of manslaughter, based on certain factual findings. The judge can only be more LENIENT, not more HARSH, under our legal system.

In other words: once the jury says "manslaughter" then the question simply becomes "how should a remorseful first offender, convicted of manslaughter, be sentenced?" The judge CANNOT legally say "well, no matter what the jury says I think he should have been convicted of murder, so I'll just nail him on the sentencing part."

This isn't to say that such things DON'T happen--they do, and generally in a manner to screw over blacks. But it's something that SHOULDN'T happen, and if you can prove it happens then you can appeal the sentence.
-Gin n whiskey

joe said...

Anon, what's that about our legal system?

A controversial federal rule allows (and arguably requires) judges to consider virtually any conduct related to any conviction when deciding on a sentence. Even if it's conduct underlying a charge on which a defendant has been acquitted. So, although Fitzgerald may only have been able to convict Blagojevich on a single count of lying to the FBI, he still could obtain the maximum sentence for Blagojevich on that charge—five years. But should Fitzgerald actually use this weapon to nail Blagojevich without retrying him?

N. Friedman said...

The problem remains in this case - and apropos joe's point - of determining whether race or judicial preference towards accused police officers was at work (and, I might add, we have not seen whether, in fact, the Court sentence is even unusual for a police officer - although it might be).

Due to having a school of thought which sees race as the issue even when there is a more natural explanation, we have no way to know whether statistics coming from people of that viewpoint mean anything.

No doubt, in certain types of cases blacks are likely to be sentenced more harshly than whites. In many of those cases, that is likely due to race. However, that is clearly not always the case. So, the goal ought be to find where race is and is not a factor and why. I do not see that sort of subtlety in David's view here or in his other writings I have read on this website. From supposedly racist tea-party loons (who, notwithstanding the racist supposition, evidently voted en masse for blacks and an Indian who share tea-partyism as an ideology) to police shooters, it is always the same assertion: race.

A better analysis of our society is one of class - although it too has problems. However, seeing race working everywhere amounts to crying wolf - as in this case, which seems a paradigmatic example of the judicial view of the police.