IN THE wake of the recent grand jury decisions in Ferguson and Staten Island, outrage and despair are reverberating across the nation, including at the law schools where we teach. Many of our students are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system.
Law establishes its legitimacy through procedures that are open and fair. Legal procedures create accountability for those who wield power. We ought to determine the law’s legitimacy at least in part from the perspective of those who suffer its coercion. When the law’s blows fall persistently on the lives and bodies of identifiable groups, and when the procedures we have designed to create legal accountability are short-circuited or fail, our aspiration for a legitimate social order is put at risk.
If African-American communities come to perceive police as alien and violent oppressors, there can be no hope of establishing a common and viable rule of law. Repeated and pervasive patterns of publicly unjustified and lethal violence against unarmed individuals kill that hope and thus victimize us all.
Police violence may be necessary, but unjustified violence can never be. The justification for violence must be established through full, fair, and open legal procedures. If these procedures are sidestepped or avoided, the legitimacy of the legal system is endangered.
It has become undeniable that existing procedures have fallen short. We need real and specific remedies. These could include mandated responses by police commissioners to recommendations by citizen review boards; establishment of sufficiently resourced state-level agencies empowered to prosecute; and regular and persistent review processes by the Department of Justice for the failure of local and state law enforcement agencies to prevent unjustified, racially based police violence.
As communities struggle to regain trust in particular police departments, there may also be lessons to learn from the use of truth and reconciliation commissions abroad. Such efforts can yield honest disclosures, apologies, and reparations rather than adversarial denials. Even more important, we need to provide the training necessary to prevent unjustified police violence. US Marines are taught, “Never point a weapon at anything you do not intend to shoot.” Our police should have an equally serious understanding of the gravity that must accompany the use of lethal force.
There is no lack of good ideas for structural changes that might improve police conduct and hold police properly accountable. But to implement reforms, people must register, vote, and stay alert that our elected officials remain answerable for the behavior of our police.
As deans of law schools devoted to the rule of law, we work continuously to instill a commitment to the legal system. We regard the rule of law as a precious and fragile resource. But the rule of law requires the legal system to respect procedures necessary to expose and correct its own mistakes. A failing legal system puts us all in a chokehold.
As we mourn the deaths of Eric Garner and Michael Brown, let us remember that the real grand jury is all of us. We must constantly ask how we can narrow the gaping distance between our legal ideals and the practices we countenance. We must struggle as a society to come to grips with the tragedies that have overtaken us.
Martha Minow is dean and professor of law at Harvard Law School. Robert Post is dean and professor of law at Yale Law School.