The basics of the case (last names only used in the following description). Two white police officers, Jordan and Callahan, are driving along a street in Northeast Washington, DC. They see an African American man, Harvey, whom one of them, Jordan, knows has a warrant out for his arrest. Jordan checks his police laptop just to be sure. He and Callahan get out of their car, approach Harvey, and call him over to them. Harvey may or may not have been trying to walk away from them. But because of how the walkways and fences are set up outside of his apartment complex, he pretty much isn’t going to be getting away, and Callahan quickly catches up with him. Callahan leads a compliant Harvey back to Jordan.
All this time, Harvey is asking what’s going on and why they’re bothering him, and the officers have both repeatedly told him that it’s no big deal and they just want to talk to him. They knew perfectly well, of course, that they were going to arrest him. But they often don’t tell people this in advance for fear that they might run or the situation may escalate. And i don’t like their duplicity in this, but i can also understand it.
This is where things get murky. One of the two officers tells Harvey to put his hands on the fence that they were all standing by. Harvey puts one – maybe two – on the fence. One of the officers tells him to put his hands behind his back. Harvey puts one hand – maybe two – behind his back. Jordan and Callahan both grab Harvey’s arms in order to handcuff him. Harvey, either intentionally or as a gut reaction to being unexpectedly grabbed, throws an elbow back and hits Callahan in the chest. Harvey then may or may not have turned around and pushed one or both officers.
Regardless, things now escalate. Jordan and Callahan go into “take-down” mode, trying to get Harvey on the ground since he’s not complying. They have a hard time doing this because, even though there are two of them, he’s taller than they are. At this point, we really have no idea what’s going on second-by-second. Part of this may or may not have involved them pushing or trying to push Harvey down into the mud near the sidewalk. At some point, Jordan warns Harvey – twice – that Jordan is going to mace Harvey if he doesn’t comply. Harvey keeps fighting, so Jordan sprays him twice in the face. According to both officers, Harvey still doesn’t stop fighting, although this is not what two defense witnesses testified. Eventually, Jordan and Callahan manage to get Harvey seated on the curb by his building – and they may or may not have handcuffed him, depending on who was testifying. At some point, they have told him that he’s under arrest, but their accounts differed as to when that was during all of this. The officers call EMS, standard procedure when the police mace someone.
Someone brings some water out of the building for Harvey’s face, which was red and burning according to some witnesses and not according to the officers. (Similarly, the officers claim that Harvey never complained about his eyes or face burning, whereas the two major defense witnesses both said they heard him saying that he was in pain.) Accounts differ on who brought out the water and on who – the local resident or one of the officers – splashed the water on Harvey’s face. Someone also went inside to get a t-shirt for Harvey, who was shirtless and was going to need a shirt to go into the cellblock – either because it’s cold or because it’s cellblock regulations – again, depending on who is testifying. Someone tried to help Harvey with the t-shirt. But accounts differ on who helped, if Harvey put it on himself or needed assistance, and how far he managed to get it on, depending on whether the testifier thought that Harvey was handcuffed or not. While putting on the t-shirt, Harvey stood up. And he may or may not have been pushed against a police car or hit by one of the officers at that point.
Regardless, he then started to run, made a left onto the next street, and then another left into the alley behind his building – with Callahan following him on foot and Jordan following in their squad car. Jordan called for backup, and another officer who happened to be driving by after leaving another scene got to the alley first and drove in right alongside Harvey, at which point Harvey stopped, was apprehended, either put in or kept in handcuffs, and sat in the squad car. EMS finally came but had to be redirected to the alley, and Harvey was eventually taken down to the jail, where he was charged with four counts: one count each for assault on an officer, one count of escaping from police custody, and one count of escaping from police custody while on release (parole, probation, bail, or somesuch).
This was the case that i heard over the last week and a half. The jury finished late Wednesday morning. We found Harvey guilty of both escape charges (pretty much, if you found him guilty of the first one, he was automatically guilty of the second). But we were hung on the two assault charges. It’s clear there was a scuffle between him and the officers. But the real questions where a) what actually happened?, b) were the officers’ actions excessive?, and c) was Harvey then justified in his resistance to arrest? And i don’t have an easy answer to any of those questions. There were way too many inconsistencies between and sometimes within people’s testimony for many of us on the jury to feel that we had a really clear idea of what had happened. After listening to six witnesses – three for each side – we still didn’t have a clear idea of what actually went on that evening.
What i’m more interested in here, though, is that initial question at the start of this piece. What is justice? I’m pretty comfortable with how (most) of the jury debate process happened. We were a group of three African American women, one African American man, four white women, three white men, and one white Shannon. Most of us were in our thirties. But we had one man who i think was in his twenties and a few women in their 50s and 60s. So we were a pretty age-, race-, and gender-diverse group. (Interestingly, the judge, court reporter, all but one of our court clerks, and both attorneys were also African American.) Most of the debate happened in a very civil and deliberate manner, although there were strong opinions on both sides – which is what helped to hang us on the two assault charges.
I’m about as comfortable as i could be with the two charges on which we did convict him. None of us on the jury was convinced that Harvey was either hit or pushed when he stood up for the t-shirt. And we consequently felt that, with the “cooling off period” on the curb, he could easily have chosen not to run since he was no longer in the heat of the moment and feeling in imminent danger. (Harvey did not testify in his own defense. So we don’t really know how he felt or how he perceived things at any point throughout this whole ordeal.) So while he may have been justified in fighting back earlier, by the time he was on the curb, he knew he was under arrest and he was no longer in any imminent physical danger.
But, again, what is justice? Harvey will get 1-5 years for each of the two counts for which we convicted him. (This is one of many details that we found out after the case was over, in talking with both of the attorneys.) One to five years for a situation where neither officer was seriously hurt – one was completely unhurt, the other only had a few minor scratches on one arm. Granted, his sentence won’t be for assault but for his attempt to escape. Ironically, the two assault charges, which are the much harder charges to prove and were the much harder charges for us as a jury to deal with, would “only” have gotten him 18 months each since neither officer was seriously hurt.
So Harvey will now go to jail for the escape charges, and the police can feel at least partly vindicated. But what happens with Harvey? We learned almost nothing about him throughout the course of the trial, aside from the fact that he was out on release, had a bench warrant out for his arrest, and knew Jordan from another neighborhood and had had no problems with him in the past.
But as a youngish African American man, i would speculate that at the time of the incident, he was also unemployed and likely doesn’t have a college degree. He may not have even graduated from high school. According to DC Public Schools only 72% of public school students in the city graduate. And according to the Washington Post only 9% of DC 9th graders will graduate from college within five years of high school graduation.
What does Harvey get out of this? Will the prison in which he’s going to spend however long – a prison that will most likely be outside of the immediate DC area – help him get a college degree (or even a GED) through distance education? Is the DC superior court system going to make sure that he gets intensive job training when his sentence is up? Will he get comprehensive HIV and hepatitis C prevention education and access to condoms and clean needles while he’s “on the inside” to make sure that he comes out, at the very least, no less healthy than he is now? The answer to all of those questions is most likely a resounding, “No.”
So, yes, i have helped sentence someone to be “punished” for his crime – and that is undeniably what our criminal “justice” system is focused on: punishing and warehousing people. But in my mind, that is far from justice. “Justice” would be making sure that Harvey has the skills and resources to improve his life once he gets out of prison, to make sure that he doesn’t end up back in a situation where the police are out looking for him to bring him in on a warrant.
So i am far from convinced that “justice” has been brought to bear in this case. I wondered when i went in if i could convict yet another African American man to prison. I have now helped to do that. But i’m even less convinced that i could ever do it again. It would be so much easier if there was actually some social consciousness involved in the system. But the inequities in who comes into contact with the police, who is brought to trial, who is convicted, and who is sentenced to long prison terms (see, e.g., the Sentencing Project) mean that the incredibly tall deck is stacked incredibly high against African American men in this country. And for them, there is little justice, either individually or collectively, in sending one more to prison.
The US attorney’s opening and closing statements both focused on the fact (which was at least partly true) that Harvey had made multiple bad decisions in the incident around which this case centered. What he did not talk about, however, was that people make decisions within particular contexts, that no one has unfettered choice or unfettered freedom to be whomever they want to be or to do whatever they want to do. Until those “choices” are truly choices, until people can make decisions about how to act and react in the world without being limited by their race, class, language, physical or mental ability, immigration or employment status, gender identity or expression, sexual orientation, body size, educational attainment, religion — until that day, putting someone in prison may seem like it brings justice to the victims. But it will not help our society, nor will it right the wrongs experienced by the alleged or proven perpetrators, nor will it bring justice to our culture and our selves. Sending yet more African American men (and others) to prison will not usher in a country free of crime, racism, classism, or other injustices. In order for that to happen, we will all need to examine our cultural over-reliance on jail as a fix for injustices that need much deeper, much more expensive, and much longer-term solutions.