CI: The Irrelevance of “Innocence”

Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

The Irrelevance of “Innocence”
by nancy a heitzeg

It was with great trepidation that i finally forced myself to read the Department Of Justice Report Regarding The Criminal Investigation Into The Shooting Death Of Michael Brown By Ferguson, Missouri Police Officer Darren Wilson. I opened it long after i had reviewed the companion DOJ Investigation of the Ferguson Police Department. And, it is in that order that they must be read. Whatever happened on Canfield Drive on that tragic day surely unfolded under the heavy canopy of occupation, under the sway of a corrupt police department that held the city under siege, that heavily targeted, brutalized, and then paid the bills on the backs of Blacks.

The report is a gut-wrenching read – tangled and traumatized witnesses, a pervasive climate of rumor and fear, an impossibly high legal bar for Federal Civil Rights prosecution, and the forgone conclusion that there could be no indictment, save for the piercing sentence found in the final paragraph of the report:

Roses for Mike Brown
Roses for Mike Brown

Given that Wilson’s account is corroborated by physical evidence and that his perception of a threat posed by Brown is corroborated by other eyewitnesses, to include aspects of the testimony of Witness 101, there is no credible evidence that Wilson willfully shot Brown as he was attempting to surrender or was otherwise not posing a threat. Even if Wilson was mistaken in his interpretation of Brown’s conduct, the fact that others interpreted that conduct the same way as Wilson precludes a determination that he acted with a bad purpose to disobey the law. The same is true even if Wilson could be said to have acted with poor judgment in the manner in which he first interacted with Brown, or in pursuing Brown after the incident at the SUV. These are matters of policy and procedure that do not rise to the level of a Constitutional violation and thus cannot support a criminal prosecution. Cf. Gardner v. Howard, 109 F.3d 427, 430–31 (8th Cir. 1997) (violation of internal policies and procedures does not in and of itself rise to violation of Constitution). Because Wilson did not act with the requisite criminal intent, it cannot be proven beyond reasonable doubt to a jury that he violated 18 U.S.C.§ 242 when he fired his weapon at Brown.

The report raises too questions for movement. How much tension was inflamed, how many distractions furthered by click-bait merchants who built false hope for a Wilson indictment?  Why is the vision of “justice” so narrow and carceral — demanding arrest, trial and punishment for killer after killer after killer without cease? Why the  insistence on  “innocent” victims –  unarmed, under-aged, hands up in surrender?

In Stop poisoning the race debate: How “respectability politics” rears its ugly head — again, Brittany Cooper responds to recent efforts to distance from Mike Brown following the DOJ Report:

Roses Line Canfield Avenue
Roses Line Canfield Drive

…there is no scenario in which a teenager or any other person should be dead for stealing cigarillos and not walking on the sidewalk. Period. The Black Lives Matter movement is asking us at base level to reject many of the assumptions that undergird our current thinking about how policing takes place in Black and Brown communities. Why are the police trained to shoot-to-kill rather than to shoot to disarm? Why do police use authority and weapons to escalate situations rather than deescalate them? And why, then, are Black men the most frequent casualties of these severe police tactics?

These are not the kinds of questions that can be asked when the victim is a perfect victim…

Michael Brown remains an appropriate symbol of this movement. For one, his acts of resistance and refusal – and I do see them as such – pointed us to a city that balances its budget on the backs of poor Black residents. The police merely act as thuggish enforcers for the racket that constitutes city government.

Beyond that, this movement, before it is all said and done, will force all of us to grow up and stop believing in the myth of our own purity

It is not just with respect to the police killings  – #Every28Hours – of Blacks that we much confront this tendency to quickly fill the biographical details with notes of unarmed, honors student, college-bound, or other mitigation. We do it too with death penalty challenges that focus on actual innocence, on exoneration, and in calls for criminal justice “reform” where the salvageable kernels of wheat will supposedly be separated from the “violent” irredeemable chafe.

This is untenable and this is wrong. Individual “innocence” is irrelevant to the larger critique of structural violence embodied in a brutal raced, classed gendered system of policing and punishment.

Mike Brown, Darren Wilson, that day and Canfield Drive all collide in this swirl of relentless state violence. Efforts at sanctification or vilification –  of either or any – always come to rest far beside the point.

Instead, Indict the System that, ultimately, endangers us all.


  • naheitzeg

    OLAASM TY <3

  • KayWhitlock

    Thank you, Nancy.  This needs to be said again and again.

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