Unequal Before the Law
November 29, 2021
Unequal Justice Under the Law
Rabbi Charles Feinberg
Last year Slate Magazine highlighted this story that took place in New York City.
Christopher Parham was grocery shopping for his boss when Henry Daverin, a plainclothes NYPD officer, approached him. Daverin accused Parham of driving recklessly on an illegal scooter without a helmet; a few minutes later, Parham was writhing in pain on the sidewalk outside. What happened during those few minutes was a matter of dispute. The NYPD said that Parham, a Black 19-year-old, had violently resisted arrest. Daverin and his colleagues said that they did not use force against him even though Parham had gruesome Taser burns all across his back.
Then surveillance video of the episode emerged—and proved that nearly every detail of the NYPD’s account was false. Parham had immediately cooperated with Daverin; he did not resist arrest. Nonetheless, Daverin and his colleagues had assaulted Parham, tackling him to the ground, then Tasing him over and over again. After Parham’s attorneys released the video—and his local representatives raised concerns—the district attorney dropped all charges. Daverin, who had been named in at least 10 other misconduct lawsuits, was never disciplined, either for brutalizing Parham or for lying about it. Two years later, he remains on the force.
After the death of George Floyd, the Minneapolis Police Department issued a false statement that George Floyd had “physically resisted officers”. The statement mentioned nothing about Officer Chauvin kneeling on Mr. Floyd’s neck for almost 9 minutes.
Last month the public learned that the State of New York exonerated Muhammad A. Aziz and Khalil Islam who were convicted of assassinating Malcolm X in 1965. Both Mr. Aziz and Mr. Islam served over 20 years in prison for a crime that they did not commit. Moreover, both men produced witnesses who knew that Mr. Aziz and Mr. Islam were not present in the hall in Harlem where Malcolm X was murdered.
According to the New York Times, a 22-month investigation conducted jointly by the Manhattan district attorney’s office and lawyers for the two men found that prosecutors and two of the nation’s premier law enforcement agencies — the Federal Bureau of Investigation and the New York Police Department — had withheld key evidence that, had it been turned over, would likely have led to the men’s acquittal.
Police and Prosecutors commit crimes through giving false testimony or by withholding exculpatory evidence from the accused. How many incarcerated people may be innocent of the crimes they were convicted of? According to a Mother Jones article that was published 10 years ago, it may be as many as 20,000 people! And this could be a low estimate. We just don’t know how many innocent people may be languishing in prison or jail.
The sad and bitter fact is that police and prosecutors are rarely held accountable when they commit a crime. The trial and conviction of Derek Chauvin for the murder of George Floyd was and remains unusual and exceptional. In 1976, the Supreme Court ruled in Imbler v. Pachtman, 424 U.S. 409 (1976) that a “state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under § 1983 for alleged deprivations of the accused's constitutional rights. Pp. 424 U. S. 417-431.”
A defendant who has been wrongly convicted because of police perjury or prosecutorial misconduct cannot sue for the damages incurred. Of course, the state can indict the policeman or policewoman for committing a crime. We have seen that the state is often reluctant to bring charges against the police. If criminal charges are brought, it is often difficult to win a conviction.
Prosecutors are never indicted for gross and criminal misconduct. Instead, these cases are brought before a judicial ethics committee where often nothing happens. Recently the New York Times reported on a how a group of law professors made public charges of prosecutorial misconduct (called grievances) in Queens, NY on a website they created. They were advocating for at least transparency. The public should know which prosecutors have been accused of misconduct. Yet these law professors were condemned.
According to the Times, “the blowback from New York City was swift. A city lawyer called the grievances an abuse of the system and said that they had “concerned” local prosecutors. He accused the professors of politicizing the process and violating the law in a letter sent directly to the grievance committee responsible for disciplining lawyers.”
When police can lie under oath and get away with it, when prosecutors can withhold exculpatory evidence, there is no equal justice under the law in the United States. By not holding police and prosecutors to the same standard of honesty and truth, we undermine the moral ideal that everyone should be equal before the law. By undermining this ideal, we created bitterness, cynicism, and often rage.
The Hebrew Bible teaches that the law should be applied in the same way to both rich and poor. The Bible instructs judges neither to favor rich nor poor. In our country we favor the people with power and we imprison the poor. This must change.