The Oscar Grant verdict: seems right to me.

Finding the cop guilty beyond reasonable doubt of deliberate murder would have required a leap of faith. I think the jury did the right thing.

A Los Angeles jury has convicted former BART police officer Johannes Mehserle of involuntary manslaughter in the killing of Oscar Grant. Involuntary manslaughter, also called criminally negligent homicide is the unintentional killing of a person under circumstances where the act that led to death reflected extremely culpable carelessness. He faces 5 to 14 years in prison. (Since the crime was a violent one, he will have to actually serve 85 percent of whatever the judge imposes.)

Kevin Drum is upset by the verdict, which he regards as a finding of “semi-guilty.” He joins the victim’s family, the National Lawyers Guild, and a host of the usual suspects in thinking that the officer should have been convicted of second-degree murder instead. As usual, there will be an attempt to organize riots in protest, because of course burning down the stores of black shopkeepers is an excellent way to attack the white power structure.

I haven’t followed the case closely, but when I heard the story my first reaction was “involuntary manslaughter,” which is what the jury decided on. To bring in second-degree murder, the jury would have had to be sure, beyond reasonable doubt, that an ill-trained very junior cop, operating at 2am on New Year’s, didn’t make the unforgiveable error of drawing his handgun thinking it was his taser. They would have had to be sure, beyond reasonable doubt, that instead he decided at random to murder someone he’d never met before, in front of a big crowd of people and several other police officers.

It’s good to see the people who otherwise condemn the pointlessness of harsh retributive justice making an exception in this case. Perhaps retribution is actually a legitimate function of punishment after all? And of course the silence from the usual denouncers of the criminal-coddling criminal justice system, now that the criminal being coddled is a white cop who killed a black parolee, is deafening.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

34 thoughts on “The Oscar Grant verdict: seems right to me.”

  1. Why does the criminal justice system have to be retributional OR rehabilitating? That is a false dichotomy Mark. I have no doubt that Mehserle will have much time to reflect on his mistakes and can be reformed into a productive member of society once again. He is also a piece of dirt who must pay for his crime. 5 years may be the most realistic sentence attainable, so I understand where this post is coming from. But your last paragraph is pathetic.

  2. On what basis are we making a case for retribution? Who is he "paying" by his stay in prison?

    Let me back up… I don't believe in contra-causal free will, so he wasn't ultimately responsible for his actions, in the sense that whatever impulses he was acting on were causing his actions. So if anyone should be "paying" for his crime, it should be the various factors that created in him the impulse to act as he did. But since that is a degree of knowledge that we can't know, such retribution would be impossible. Retribution always seems to require causal knowledge that does not exist.

    It seems then the only real question is one of utility. What deterrence does his incarceration provide to his future behavior, as well as other officers? Is he a danger to the community? And what level of rehabilitation is possible for him while imprisoned.

    There is also the consideration of a sense of justice for the family. But if he was not ultimately responsible, their hurt, while understandable as a human impulse, seems misguided. If a tree falls on your house, whether or not you feel the need for justice, or revenge, and thus to chop it to bits, it seems misguided. Should you not be angry at the storm that blew it over? Or the low pressure and humidity?

    All of this may seem too abstract. But that doesn't mean it isn't correct.

  3. @Eli, whatever part of his brain that generated the impulse to shoot the kid, point blank in the back, needs to go to jail and the rest of his brain and his body that are not responsible will just have to go along for the ride.

    If as he claims he was reaching for his taser and just zigged when he meant to zag he must be too much of an idiot to have such devices in his posession. And exactly what was he going to do with that taser to a kid being held face down by two men. Tasers are supposed to be for self defense not for punishment.

    I understand that crazy stupid people do crazy stupid things but even crazy people must take some responsibility for their actions and one would hope that a police organization could weed out crazy people before they give them guns.

  4. It does seem possible this was an accident, but nobody’s judgment really stops there. Responses to the verdict reflect prior beliefs & broader evaluations & affinities. This isn’t only true of “the usual suspects.”

    The retribution question properly bears on punishment, not the veridicality of the verdict. (In practice, we too often fit our opinions about verdicts to our desire to punish.) Even victims w/ no heart for retribution may demand legal recognition of the fact they were victimized. Recognition may reduce the taste for retribution.

  5. Anyone who has actually sat on a jury knows that the judge’s instructions structure the deliberations. The judge gives the jury a list of conditions that the government has to have met for a verdict of guilty to be rendered. The jury has to be satisfied beyond a reasonable doubt that each of the particulars in the instructions has been proven by the prosecution. Jurors are not pundits, nor art they bloggers. They have sworn to discharge a responsibility which they take pretty seriously. They have to answer the question, “Did the government meet its burden of proof?” They have to go down the list of conditions in the judge’s instructions for each charge in the criminal indictment, and if any of the conditions have not been met by the government, they are expected to acquit.

    Thus, it seems to me that the reality based community is still based in reality, at least for this specific reality.

  6. Among the problems here is, I think, a structural one. All the people who exhibited depraved indifference to human life by putting "an ill-trained very junior cop" in a position to commit unjustifiable homicide aren't even in the public eye, much less on trial. In the military there used to be a thing called command responsibility, but I don't know if that's ever been invoked for civilian paramilitaries.

  7. To reach their verdict the largely white (one latino, one asian) jury had to accept the testimony of a white police officer with regards to his treatment of a black man while discounting any evidence that was contrary to the officer's version of events.

    This verdict is very much in line with every other case involving white police officers and black suspects. Do we honestly think that the verdict would have been the same had the officer been black and the victim white?

  8. Kleinman missed the other option the jury had, to find for Voluntary Manslaughter.

  9. And if we apply a rule of symmetry or two, would a black man be convicted of involuntary manslaughter for shooting a police officer, saying he grabbed the gun instead of the taser?

    Or would it be capital murder.

    Or another symmetry – if there were eyewitnesses, but no recording, what would happen.

  10. Fred writes, "Tasers are supposed to be for self defense not for punishment." I thought that they were supposed to be used whenever the use of a gun was permitted, as a non-lethal alternative. But what's the difference what they are supposed to be used for? In practice, they are used whenever a cop is in the mood — when a driver refuses to sign a traffic ticket, when someone talks back to a cop, against a person who is handcuffed, and in the back when someone is walking away from a cop. All these uses are de facto legal, because they are never prosecuted. I've read of these examples and others at Jonathan Turley's blog.

  11. I forgot this one, which occurred last month: "Police Tasered an 86-year-old disabled grandma in her bed and stepped on her oxygen hose until she couldn't breathe, after her grandson called 911 seeking medical assistance, the woman and her grandson claim in Oklahoma City Federal Court. Though the grandson said, 'Don't Taze my granny!' an El Reno police officer told another cop to 'Taser her!' and wrote in his police report that he did so because the old woman 'took a more aggressive posture in her bed,' according to the complaint."

  12. Mark:

    Have to disagree. If the trial saw the video, it is pretty clear that ANY use of force was inappropriate for the situation. If I had to read the body language, the policeman likely reacted to something that was said, and in one motion drew back off of the suspect, and without any hesitation, shot him. There is no indication the subject was armed, and the subject appeared to be under control. Worst case it was an execution.

    The most charitable interpretation in my mind is that the new era of tasers and their rampant mis-use by law enforcement, likely contributed to the tendency for unnecessary use of force.

    The verdict has the feel of one, where absent the videos, the cop would have walked. They couldn't do a complete whitewash. Also possible, is that the jury may have had a severe split, with some strong advocates for acquittal and for even possibly second degree. Involuntary Manslaughter seems really inappropriate. Jurors also have to deal with deliberations that are done almost purely from memory of the proceedings. It is quite possible that the only pieces of evidence might have been a gun and maybe the Taser. All the police testimony would be from memory, as officer notebooks are not permitted to be seen by the jury. It is also, highly unlikely, especially in budget constrained times, that any trial transcripts were permitted. Jurors are left to sort out the lies from the truths, or half truths, and despite best efforts, long held biases can very well be the determining factor. Also, jurors may come to realize, that unless they want to spend halfway to eternity in deliberations, deals get made in jury rooms as well. I've been there.

  13. "whatever part of his brain that generated the impulse to shoot the kid, point blank in the back, needs to go to jail and the rest of his brain and his body that are not responsible will just have to go along for the ride.

    If as he claims he was reaching for his taser and just zigged when he meant to zag he must be too much of an idiot to have such devices in his posession. And exactly what was he going to do with that taser to a kid being held face down by two men. Tasers are supposed to be for self defense not for punishment.

    I understand that crazy stupid people do crazy stupid things but even crazy people must take some responsibility for their actions and one would hope that a police organization could weed out crazy people before they give them guns."

    But the part of his brain that was responsible was merely acting on prior information, which was prior information, etc. (ad absurdum). So whether or not you *feel* he should "take responsibility" for his actions has no bearing on whether he actually was responsible.

    The point I'm getting at is that there seems to be little evidence for anything but a utilitarian conception of justice. Even if we honor your (and mine, and society's) outrage at the officer's actions, that is still a utilitarian conceit, in that we are doing something to the criminal not for what *he* did, but for what we feel about what he did, in a sense making us all the victim. My worry with this is that it is problematic in many ways. First, how do you measure what in fact he did to us? Second, how do you determine whether punishing him has any effect at all on the ostensible lessening of our pain? Third, if we are to accept a deterministic view of human behavior, how were his actions any different than a tragedy involving a non-sentient, or inorganic "actor"? We would think it strange to feel collective outrage when a fire burns down a house and we then take our revenge on the… err, elements.

    I think this last example suggests quite well how irrational our feelings of retributive justice are. If, for instance, we were to think of this officer as a tragically misguided and emotionally under-developed human, whose actions were originated by biological and environmental forces beyond his control (he would indeed have to be God-like), then the most logical utilitarian response would be to simply forgive him (like a tree, or wild beast), and then seek ways of dealing with the event so that A)it is less likely to happen again, and B)to protect society from any further injury. This may not look much different than the standard retributive model: some basic sentencing. It would however, likely involve more of an attempt at rehabilitation, and the sentence would be purely utilitarian in that it acts as a deterrent to future crime, and protects society from a convicted criminal until we can be reasonably sure he will not offend again.

  14. If I were to just yank out a gun and shoot somebody, on New Year's Eve or otherwise, my lack of professional training would not exempt me from a far harsher sentence – I'd be weeping with relief

    to get 4 years.

    Good thing that he wasn't an illegal immigrant who shot himself.

  15. There was no reason to tase the guy either.

    I do not believe for a second that, had the case involved a black civilian shooting a white civilian, the jury would have had no trouble finding murder beyond a reasonable doubt.

  16. "Kleinman missed the other option the jury had, to find for Voluntary Manslaughter."

    Kleinman doesn't miss much, and he didn't miss this. In California, voluntary manslaughter is committed only where the defendant was provoked and acted in the heat of passion or rage (e.g. I catch you in bed with my wife). The defendant would otherwise be guilty of second degree murder. In this case, there was no question of provocation and therefore voluntary manslaughter was not an option.

  17. Bloix, I meant that the jury was presented that option by the judge. There was some testimony about the officer reacting to the emotion of the scene.

  18. Sorry Prof, but you got this one wrong. I'm glad that you admitted you weren't following the case because the verdict that was handed down was exactly a "guilty — for a Cop." Take away the badge, maybe even reverse the races where the victim is a white new year's eve reveler and the perp an african american wielding a handgun looking for a quick score, and you wouldn't even think twice about what a jury should hand down.

    Even more chilling, what if there was no video of the incident? I probably would have been inclined to believe the official police report which would have inevitably found the officer to be within reason of using deadly force. The existence of the video, however unsteady it was, made it impossible for the BART official report to overlook the subdued suspect, the compliance of the suspect, and the horror of Mehserle's partner who yelled, "What the f*ck did you do?!"

    And let's just be honest here, he used deadly force on a suspect who was already on the ground and complying with the officer's commands (not Mehserle but his partner). His partner is also over heard uttering a racial epithet prior to the shooting, not only disgracing the badge he wears but giving the public a terrible insight into how little things can change within some rank-and-file cultures.

    Was it a bad verdict? No. Was it the right one? Far, from it. Mark, even at the beginning of your career, you knew better than to advocate for a policy with a negative Benefit – Cost ratio.

  19. It's a fair bet that but for the "mitigating" factor of the defendant's status as a policeman, the jury would have found him guilty of murder. So I really think it's a mistake to frame any discussion about the verdict in this case in terms of its being "right." It's correct (at least arguably), but only in the sense that Farmer Franco's belief about Daisy is correct. It's not procedurally or epistemically praiseworthy. At best, it's just dumb luck.

  20. Eli's argument appears to be that not only is every man entitled to his own facts, no man is capable of developing his intellectual capacity to the point of recognizing that other facts might exist.

  21. @Eli, As best I can figure your point is that (at a deep phycological level) we are all at the mercy of all of the accumulated events that have made us and are therefore not really responsible for the insane and missguided actions we may commit. Further, legal penalties that result from those actions are little more than revenge perpitrated by an unjustly enraged society on poor schmucks who are only guilty of acting out what capricious fate has destined them to do. Thus the rational thing to do is to means test any sentence as to it's effectiveness at preventing this kind of action from occuring again.

    OK. If this particular criminal were to be sent away to some hell hole to rot for as long as possible the effect would be to deter other officers (note he held an office) from being similarly careless with their wepons. The gun and taser are not aids for officers to work out their emotional problems with. They are professionals who are supposed to leave their emotional problems at home. The wepons they are entrusted with and trained to use are for self defense and defense of the public and are measures of last resort. Any thought of using a weapon against a restrained detainee should give a cop cold chills and thoughts of prison and a long hard sentence could create that desired feeling. In that light this disgraced former officer can take comfort in knowing that his long term of encarceration is helping to contribute to the safety of the public and the cause of justice that he swore to uphold.

    Oh yeah. It's the law! Police have the idea that the law is for them to wield but they are not subject to it. I know this because I (a person who's only official contact with police has been minor traffic violations) have overheard a cop bragging about stealing, seen the smirk and rolled eyes when it was suggested that police follow the rule of law and was in a court room when a cop lied on the witness stand. I also have friends who are officers who are honest, trust worthy and would never dream of bending the law.

    My point is that there is a problem element in our police population and they need to KNOW that there are consequenses for stepping over the line and if not in this case when?

  22. – There was no reason to taser the guy, as evidenced from the video. OR rather there was, as the BART cop saw things – punishment.

    – If you think that it people are likely to mistake a taser for a pistol, you've never held one or the other. It would be like mistaking a toothpaste tube for a knife.

    – I have no idea why Mark is harping on retributive justice, and ignoring deterrence. This may be my bias, but I don't like retribution theories; to me, the main value of sending this guy away is to, hopefully, make cops more wary of doing things like shooting restrained people in the back.

    – If this had been a mugging, and Grant had not been a cop and instead a mugger who claimed a desire to zap his victim to stop him from struggling rather than killing him, would 5-14 years "seem right" to Mark? If not, why is that?

  23. @Fred "OK. If this particular criminal were to be sent away to some hell hole to rot for as long as possible the effect would be to deter other officers (note he held an office) from being similarly careless with their weapons. "

    That's perfectly fine with me. I was only ever pushing back on retribution. But if we are talking deterrence, I'm not sure a life sentence would be necessary. How you determine efficacy here is difficult. But no more it seems than making someone "pay" for their crime.

  24. I can't agree with Mark on this one, mainly because according to the local news report the jury rejected the defense position that he thought it was his Taser.

  25. Mark, dear friend, I urge you to better acquaint yourself with the facts of the case.

    Your claim that you "haven’t followed the case closely, but" nevertheless have formed an opinion including the disparagement of "the victim’s family, the National Lawyers Guild, and a host of the usual suspects" sounds a great deal like "I don't know what I'm talkin

    You suggest that the jury "would have had to be sure, beyond reasonable doubt, that instead he decided at random to murder someone he’d never met before, in front of a big crowd of people and several other police officers." Well, watch the video, and ask yourself what doubts you have.

  26. @Eli, I'm not really sure it's possible to seperate deterrence from retribution.

    Here in Sweden they seem to have completely given up on retribution and are all rehabilitation all the time. When Anna Lindh, the foreign minister and heir apparent to head the government was murdered by a right wing hot head he was almost released into out patient therapy until he skwawked so much about the stigma of being declared mentally defective, so they gave him a new trial and found him guilty and sent him up the proverbial river. But that is an exceptional case.

    The 'patch you up, forgive you, now go and sin no more, just check in with your counceler weekly' aproach seems to work well with native swedes in general but a lot of the imigrant population not so well. Sweden now has more refugees from Iraq than any other country in the world (in a country with about 11 million people it is quite a burden) and those folks are more accustomed to the retributive style penalogy. Teenagers are burning down schools (with bombs made using plans posted on phone poles) east-euro gangs waging open war in the streets to rob armored trucks (quite successfully about every month) and eurotrash biker gangs waging drug wars, assasinating rivals and such. Swedes are used to sitting down and talking things over in a civilized way, even with criminals. They are a bit at the end of their rope with these wild marauders.

    That said, I think even the staid and calm swedes would be up in arms about a cop who popped a cap into some poor kid being held face down by two other cops. It is hard to imagine a more callous, irresponsible abuse of authority. To say that it is the systems fault for giveing this mental defective a gun and a badge to back it up is an understatement. But the guy drew his gun, aimed it and pulled the triger, firing a fatal bullet into a helpless man. With all the kids doing hard time for selling a bag of weed I think the prison system can find a cot for this guy. What do you think this covicted killer would say if the shoe were on the other foot?

  27. I could understand a world in which all juries show the same kind of defendant-centered reasoning advanced by Mark.

    I could understand a world in which all juries show the same kind of prosecutor-centered reasoning which Mark advanced as an alternative.

    Both of these worlds are morally coherent.

    I can also understand a world in which all juries are defendant-centered when the defendant is a cop, and prosecutor-centered otherwise.

    But I can make no claims of moral coherence for this world. It's just the one we live in.

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