In prosecutor’s offices, there is a common saying: You can “indict a ham sandwich.” As a person who has worked in three prosecutor’s offices, I have seen this to be true. But, in the summer of 2014, when Michael Brown was killed in Ferguson, this adage became qualified. It seems that you can indict anyone, as long as they aren’t a police officer.
That summer, I left the Manhattan district attorney’s office to go to law school. I remember watching the press conference where the prosecuting attorney Robert McCulloch announced the nonindictment of Darren Wilson. I remember being confused and not giving an opinion at family gatherings because I didn’t have all the facts. I remember poring through the grand jury transcript when it was released to have all the facts. I remember being struck by the prosecutor’s abdication of responsibility to argue for an indictment. In the years that followed, I saw this happening over and over again.
I thought that, maybe, looking at police violence outside the United States might expand my imagination of what is possible and help me better understand our problems.
So, in January 2017, I went to South Africa to compare its police violence problem with ours. South Africa has a majority Black government and police force; an independent national law enforcement body dedicated to investigating crimes committed by police; and one national standard for use of force. Furthermore, a prosecutor’s decision not to bring criminal charges can be challenged in court by members of the public. South Africa also lacks certain challenges to accountability that are equally important, including police unions with outsized power or a qualified immunity doctrine that limits civil lawsuits. Yet, like the United States, it has a police violence problem and a law enforcement culture that reinforces silence about this violence and toxic masculinity.
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I wanted to understand why.
The first lesson I learned is how important it is to have a shared history. As we saw in Charlottesville, by failing to honestly contend with our nation’s history, we leave room for alternate narratives to develop and for people to fail to learn from the lessons of the past. In the United States, after centuries of slavery and institutionalized racism, we are still grappling with that history and beginning to mark it in public, prominent ways through places like the National Museum of African American History and Culture and the Equal Justice Initiative lynching memorial.
By contrast, after the end of apartheid, South Africa rapidly designated historic sites that were part of the struggle, such as Liliesleaf Farm, and created space to remember the ugly past through museums such as the Apartheid Museum.
While I acknowledge that the difference may be due to the demographics of a majority-white society versus a majority-Black one, the unwillingness of the United States to deal with the ugly realities of the past may be due in part to the U.S. exceptionalism embedded in our psyche. In this country, we are taught that we are the nation in the world where immigrants can experience great social mobility or the “American dream.” We are taught that we are the land of the free and the home of the brave, that we were the first to declare that “all men are created equal and endowed by their creator with certain inalienable rights.” While parts of this story are true, this narrative often leaves out the painful injustices that occurred alongside these declarations.
In addition to memorializing history, we need to actively contend with it through a national “rehumanization” process to heal from the wounds of the past. In the United States, we saw the International Association of Chiefs of Police apologize for their role in racially discriminatory policing in 2016 and the U.S. House of Representatives apologize for the United States’ history of slavery and segregation in 2008. Furthermore, in 2014, the United States Department of Justice established a Trust and Justice Initiative to foster reconciliation through “frank engagements between minority communities and law enforcement to address historical tensions, grievances, and misconceptions that contribute to mutual mistrust and misunderstanding and prevent police and communities from working together.”
However, in South Africa, the Truth and Reconciliation Commission (TRC), a body that convened to publicly air and address human rights abuses, occurred immediately as the apartheid ended. Robert McBride, a former member of the African National Congress’ armed wing and who received amnesty from the TRC for his role in bombing a nightclub frequented by police officers, told me that “when you have the opportunity to speak to people who you have caused harm, it rehumanizes you to yourself.” Having these conversations helped him and others heal from the “psychic numbing [that occurs] where you are solely focused on your political mission.”
Visiting South Africa also helped me to grasp the limitations of a truth and reconciliation commission and the ways we glamorize it in the United States. For example, TRC commissioner Fazel Randera shared in an interview with Rewire, “[O]ne doesn’t get the sense that any white person feels that they were complicit in apartheid,” and consequently, they “don’t understand the advantages they got that continue to give them advantages in the new South Africa.”
One reason for this lack of understanding may be that while some institutional examination was done in South Africa’s TRC, it was limited to gross human rights violations. Antony Altbeker, a researcher who conducted a study about the hypermasculine South African police culture, says because much of this politically motivated policing aimed to restrict the activities of anti-apartheid activists and didn’t concern day-to-day policing, many police officers think the TRC was irrelevant to their work. Thus, while a TRC may provide rehumanization for individuals who were actively engaged in oppression or the struggle against it, it is insufficient to dismantle the legacies of oppression that remain in institutions and society at large. For example, it does not change whom police officers are taught to imagine criminals to be or whether officers consider alleged offenders in their full humanity or as a problem to be solved.
The third thing I learned as a result of visiting South Africa was about a failing that it shares with the United States. There are very few trainings on institutional roles in past injustices. Trainings within institutions on the roles they have played in past injustices allows new and more long-term employees to understand public mistrust. This transparency also builds a culture of vigilance committed to ensuring that atrocities will not recur. Ultimately, institutions, whether police or prosecutors, are made up of individuals and it is critical for the individuals yielding state power to think about how and where their predecessors went wrong.
Neither the United States nor South Africa has prioritized this type of training in prosecutor’s offices and, as a result, not all prosecutors see that their inaction can be part of historical complicity in racial terror perpetrated by people in their offices. Furthermore, in South Africa, the lack of these trainings has allowed police officers to develop a counternarrative where they ignore their role in enforcing apartheid, but celebrate themselves for the peaceful transition to democracy.
Police officers in the United States do not appreciate how they enforced Jim Crow laws and that police departments continue to live with that legacy. As a result, prosecutors and police officers in both countries have challenging relationships with communities that they oppressed. McBride, who is now the head of the independent law enforcement body that investigates crimes by police officers in South Africa told me that for police officers, “regardless of color, blood stays blue.” A similar narrative is popular in the United States, where people who work in law enforcement feel underappreciated and resentful, saying “Blue Lives Matter” while failing to appreciate the roots of the public’s fears and skepticism.
In addition to institutional learning about roots of public mistrust, I realized the importance of re-examining the tools that institutions use as their mandates change. Defined broadly, these tools are the policies and practices of carrying out one’s job; they range from the weapons police carry to the use of informants or neighborhood patrols as a means of proactive enforcement. Prosecutors’ tools span the use of money bail in pre-trial detention, the frameworks used to decide plea bargains, and processes to assess the truthfulness of witnesses.
To their detriment, both the United States and South Africa have taken limited action to rethink the tools commonly deployed in their criminal-justice systems. For example, as police officers shifted from being the enforcers of segregation to (theoretically) protectors of all people in the United States, the re-examination of tools used were limited to recommendations by President Obama’s Task Force on 21st Century Policing and are still in the process of being put into practice. In South Africa, prosecutors were part of the transition from apartheid and played a key role in investigating rogue elements of the armed services. However, the accountability mechanism for prosecutors outlined in the law that established their national prosecuting authority is still being implemented.
The fifth lesson is one we are beginning to see in pockets of the United States and one that is well-established in law, if poorly executed, in South Africa: data collection and transparency in institutions. In the United States, Philadelphia announced a transparent protocol for how the prosecutor’s offices will handle use-of-force cases. In South Africa, there is a national reporting requirement for deaths in custody, but poor monitoring of what data is reported and scarce resources for investigations undermine it. Still, data collection, analysis, and transparency are necessary to allow the public to know what its government is doing and to hold it accountable.
Finally, in order to dismantle institutionalized oppression, government institutions need to encourage civic participation. In both countries, the influence of political donations limits the ability of those without money and contacts to truly participate in the political process. In the United States, this is exacerbated by felon disenfranchisement, gerrymandering, and voter ID laws. In South Africa, the problems are less structural and more cultural, because as a young democracy many people are still learning their rights and fully appreciating the agency they have. Those in the U.S. and South African governments must realize that change is most often demanded from those outside of its bureaucracies, and they should work to close information gaps through outreach and create forums to actively solicit feedback from their citizens.
These issues of government accountability and citizen rights go far beyond one individual, one law, or even one country. They speak to systemic oppressions embedded in policing culture globally.
However, this does not mean that the problems are intractable or that progress is not possible. Dr. Martin Luther King Jr. said, “The arc of the moral universe is long, but it bends towards justice.” President Obama expanded that to “it doesn’t bend on its own.” Each generation must answer how it will continue to bend the arc of the moral universe toward justice. If we cannot figure out how to make it bend, it seems likely that something will break.