What constitutes 'justice' for Freddie Gray?

Op-ed: UB's law school dean explores what constitutes 'justice' for Freddie Gray.

Some commodities are easily measured, but justice is not among them. Once the trials of the six Baltimore police officers charged in connection with Freddie Gray's death have concluded, how will we know whether justice was achieved?

Let's begin by recognizing what the criminal justice system can accomplish — and what it can't.

Some see the forthcoming trials as a way to vindicate a young man who died in police custody. But the trial scheduled to begin in Baltimore City Circuit Court Monday is captioned State of Maryland v. Officer William G. Porter. Neither Freddie Gray nor his family is a party to the action. Gray's family already won their case — or, rather, a $6.4 million judgment to settle a case the family could have brought. Monetary compensation and the effect it may have on future police practices is one very important form of justice, and Gray's family has already accomplished this goal.

Some also hope the officers' trials will advance the agenda of the "black lives matter" movement. But a single prosecution (or six) cannot solve broad social problems or reform troubled institutions. Instead, the question in these and any other criminal trials is narrow: Has the defendant violated a specific law?

More precisely, the question is whether the government has proved beyond a reasonable doubt that the defendant engaged in prohibited conduct as charged. A not-guilty verdict does not mean that the defendant behaved properly or that a wrong did not occur, only that the state did not meet its high burden of proof.

We might wish that the trials will reveal the true story of Gray's fateful ride in a police van following his arrest on April 12. But a criminal trial is a notoriously bad way to tell a story. The presentation is fragmented. The narrative is constrained by technical rules of evidence. Those who expect the trials to answer all the questions or to solve all the problems highlighted by Gray's death are bound to be disappointed.

Yet despite all these limitations, the trials will be an important moment in the civic life of Baltimore. Police officers, sometimes perceived as acting with impunity in neighborhoods like West Baltimore's Sandtown-Winchester, will be called to account in a public proceeding. A jury of citizens (or an independent judge, if any defendant waives his or her right to trial by jury) will assess the officers' conduct, with severe sanctions at the ready. The trials themselves — regardless of the outcomes — are a healthy reaffirmation of the rule of law.

Does justice demand a particular verdict? It does not.

Some officers may be acquitted. Some may be convicted of lesser counts, given the aggressive charging decisions reflected in the indictment. Such outcomes would not mean that justice was not achieved, only that the admissible evidence did not rise to the very high level of proof beyond a reasonable doubt as to that defendant or that count of the indictment.

To satisfy our sense of justice, these trials must have certain attributes. They must be public proceedings, so that Gray's family and the community as a whole come to understand how a 25-year-old man died in law enforcement custody. There should be competent lawyers on both sides and a fair-minded judge — conditions that have been already met. And the jurors picked for each trial must be free of any bias.

Above all, it is imperative that each defendant be held accountable for his or her own conduct. In other words, justice must be individualized.

Of the many pretrial rulings by Circuit Court Judge Barry Williams, perhaps the most important is that each of the six police officers will receive a separate trial. Judge Williams concluded that if the officers were tried together, evidence against some defendants could unfairly be held against other defendants. Underlying this procedural concern is a fundamental principle: Individuals in our society are to be judged for their own actions, not on their proximity to others who may have engaged in wrongdoing.

The value of individualized justice matters greatly to those of us disturbed by Freddie Gray's death. If the charges against the police officers have merit, Gray himself was denied such justice.

The state's accusations — which have not been proven — are based on the general theory that Gray was the victim of a kind of profiling. Prosecutors will argue that the police officers confronted, chased, arrested and physically mistreated Gray not because of misconduct they observed but because of assumptions they made about him and the neighborhood in which he lived.

If police officers targeted Freddie Gray because of what they assumed about African-American men on the streets of Sandtown-Winchester, that was wrong. And if those same police officers are prosecuted based on what some people think of police officers in general, that would be wrong as well.

Some may find it ironic that officers accused of denying Freddie Gray fair treatment should receive it themselves in the form of separate trials and other procedural accommodations. But our justice system is not designed to give alleged wrongdoers a taste of their own medicine; it is designed to adjudicate and punish misbehavior fairly and dispassionately.

Unfortunately, one-size-fits-all generalizations have infected American criminal justice practices in recent decades. Racial profiling, skewed pretrial detention and plea bargaining practices, and mandatory sentencing laws are based on assumptions about categories of individuals rather than on determinations about individuals. These policies have contributed to a system of mass incarceration that many protesters rightly decry.

For that reason, regardless of the verdicts in these six trials, justice does demand changes to unwise and unfair law enforcement policies, including those that may have contributed to Freddie Gray's death.

Some reforms are on the horizon. The U.S. Justice Department's Civil Rights Division is working with the Baltimore Police Department to improve the way officers are trained and deployed. Attorney General Brian Frosh has called for law enforcement agencies in Maryland to adopt federal recommendations against racial profiling, and Baltimore has launched a pilot program to outfit police officers with body cameras to strengthen accountability.

Meanwhile a Justice Reinvestment Council commissioned by the Maryland General Assembly is developing recommendations to reduce the state prison population and reinvest the savings in strategies to increase public safety. And bipartisan legislation in Congress would limit the reach of some federal mandatory sentencing laws.

The upcoming trials of the Baltimore police officers are important and should be closely watched. But critical efforts are underway now to address the problems of mass incarceration and to tackle persistent problems in our criminal justice system. We needn't await the conclusion of these trials, or insist on specific verdicts, to begin the process of improving justice on the streets of this great city.

Ronald Weich is the dean of the University of Baltimore School of Law. From 2009-2012 he served as an assistant attorney general in the U.S. Department of Justice. He can be reached at rweich@ubalt.edu.

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