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Don't Blame the Grand Jury for Not Indicting Darren Wilson. Blame the Law.

David McNew/Getty Images

St. Louis County prosecutor Robert McCulloch announced Monday night that a grand jury had decided not to bring criminal charges against Darren Wilson, the white Ferguson police officer who shot to death Michael Brown, an 18-year-old black man. Since then, the substantive issues raised by this case have been buried under an avalanche of vitriol directed against the grand jury, McCulloch, and Wilson—criticism that misunderstands the criminal justice system, and which obscures the deeper legal and structural injustices that ought to be the focus of our attention.

For months, most observers have realized that given the law and evidence, convicting Wilson would be unlikely. Nevertheless, many expected—and demanded—an indictment as a potent symbol that a black victim’s blood is no less valuable than a white one's. Monday night’s decision therefore feels like a monumental betrayal. Indictments, after all, are relatively easy to obtain because prosecutors guide jurors to accept their chosen narrative—without the interference of a defense attorney and conflicting witnesses. As FiveThirtyEight's Ben Casselman argued, the jury’s refusal to indict was “incredibly rare”— about 1 in 14,000.

But Casselman's article buried the point. It is true that most grand juries choose to indict, but it also true that most grand juries only ever hear cases when a prosecutor is convinced that there ought to be a trial. That was not the case here. McCulloch was in a bind. As became clear in his remarks last night, he genuinely did not believe that Wilson had committed a crime. And a prosecutor is obligated to only “file charges that he or she believes adequately encompass the accused’s criminal activity” and to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” In ordinary circumstances, McCulloch would have declined to file charges. But in this case, McCulloch could notsimply do nothing—this would have annihilated trust in the criminal justice system. So he did the only thing he could do: He took himself out of the equation and presented all available evidence to the grand jury.

It is true that the prosecutor does not usually present everything to the grand jury, and McCulloch’s decision to do so here has infuriated many. The New Republic's Noam Scheiber insists that the proper forum for “establishing the underlying facts of a case” is an actual trial, and McCulloch should have presented evidence selectively in order to ensure an indictment. In Vox, former federal prosecutor Alex Little accused McCulloch of “abdicating his role in the process as an advocate for justice.” But that's not the role of a prosecutor, who is an advocate for justicenot for conviction. Prosecutors are obligated to “disclose any credible evidence of actual innocence” to the grand jury, and when guiding a grand jury toward an indictment, prosecutors must do so out of conviction that their story is the truth. A trial is not the forum for establishing the underlying facts of everycase; it is the forum for establishing the facts of a case where the prosecutor believes a crime was committed and the defendant will not plead guilty. Most cases never come to trial at all. So what was unusual in St Louis County was that McCulloch filed charges at all, not that he presented all evidence.

If we allow debates over grand jury operations to obscure the actual systemic injustices in the way police and young black men interact, then we have already missed the point. The problem is not that McCulloch and the grand jury didn’t act faithfully with the law (they did), nor even that McCulloch’s press conference was astonishingly tone deaf (it was). The problem is that a combination of law and social forces make policemen far too quick on the draw, especially in encounters with black men. Recent trends in American self-defense law makes it extremely easy to claim that homicide was justifiable. Cultural expectations and racial stereotyping mean that black men are far more likely to be viewed as a threat, and suffer the fatal consequences. Policemen often travel alone and lack the confidence and training that they can handle threats with anything less than lethal force.

These are the forces we should be combating, and we have mechanisms for doing so. We can devote ourselves to changing the racist images of black men that remain etched in the collective consciousness of White America. We can demand that legislators make it harder for police and vigilantes to claim self-defense by shifting burdens of proof and defining categories of homicide that will deter police from pulling their guns so quickly. We can increase the training, the pay, and the number of police officers—while tightening the rules and regulations for when they are permitted to use force. Making these changes will be far more difficult than roasting a local prosecutor, and we must be clear-eyed about the tradeoffs. Changing laws and standards requires resources. It will probably mean that some innocent cops will go to prison, and it may well mean more crime. But given how poisoned relations have become and how under siege some communities feel, I'm inclined to think those costs are worth it.