Undermining Equal Protection (R. Ward Holder)

In the 17^th of July, 2014, Eric Garner died after being placed in a chokehold by Staten Island police during his arrest for the suspicion of selling loose cigarettes. Less than a month later, on August 9^th, Michael Brown was shot to death in an altercation with Darren Wilson, a police officer in Ferguson, Missouri.  Both cases raised significant concerns about civil rights, about the possible militarization of policing in American cities, and about the treatment of minority communities by white police officers and white police forces.  In response to the furor that arose, the two district attorneys, Robert McCulloch in Ferguson and Dan Donovan in Staten Island, sought to quell community distrust by going to extraordinary measures.  Both prosecutors presented remarkable amounts of evidence to the grand juries.  McCulloch, especially, in putting that material before the public, said that he did so in an effort to be completely transparent and to demonstrate that the grand jury’s choice not to indict had been well supported.  What has not been well considered, however, either by analysts or by the two prosecutors, is how their choices to approach the grand jury with all of the necessary evidence to avoid an indictment undermined the principle of equal protection before the law.

Equality before the law is a pillar of both the American systems of government and justice, and a staple of Christian thought.  In the American canon, that equality began with the second sentence of the Declaration of Independence, that trumpeted that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  This equality was then formally accepted into the Constitution with the ratification of the 14^th Amendment and its “due process clause” in 1868.  Equal protection before the law is basic to American thinking.

But that equality is just as central to Christian thought, though it is founded on a different basis.  Instead of enumerated unalienable rights, Christians have turned to Genesis 1.27.  “So God created humankind in his image, in the image of God he created them; male and female he created them.” (NRSV)  Humans all share in the image of God, the imago dei, that is as basic to human reality as our DNA.  Michael and Kenneth Himes have written in their Fullness of Faith: The Public Significance of Theology (Paulist, 1993), that this shared formation in the imago dei is the basis for Catholic support of the idea of human rights. Being formed in the imago dei that is necessarily trinitarian binds humans necessarily into communities that love and support each other as naturally as they support themselves.

It may be that District Attorneys McCulloch and Donovan were attempting to do a good thing, to present all possible evidence before the grand jury so as to bring the swiftest resolution possible to a very serious issue that affected the relationship between police and the communities they are sworn to serve and protect.  But if that is so, the manner that they took undercut all of their efforts.  By presenting such an overwhelming amount of evidence to the grand juries, McCulloch and Donovan made equal treatment before the law impossible, at least in their jurisdictions.

It may be that McCulloch and Donovan’s motives were not wholly pure.  Other analysts have suggested that Donovan sought to avoid a prosecution that was politically difficult; or that Robert McCulloch’s effort was designed to avoid an indictment.

But even if the prosecutors’ motives and intentions were completely pure, their actions have undermined the possibility of equal protection before the law.  What were some of the egregious actions to which I refer?  Daniel Pantaleo’s lawyer, Stuart London, told the New York Times that he was able to address the grand jury for two hours, and tell them his intentions.  This is almost unheard of for most defendants – they get to tell their side after they are indicted.  Robert McCulloch presented 62 witnesses and thousands of pages of testimony.  Literally, each prosecutor set an unreachable standard for future cases.  Will the next suspect in a killing in Staten Island receive the benefit of the doubt that was given to Officer Pantaleo – will he or she be given hours to testify to his or her intent?  Or in Ferguson, will District Attorney McCulloch present 62 witnesses and thousands of pages of testimony the next time a resident of Ferguson who is not a police officer is accused of murder?

The short answer to these rhetorical questions is “no.”  American courts would grind to a halt if the grand jury process presented so much exculpatory evidence for every defendant.  But don’t all deserve it?  Doesn’t the accused gang-banger deserve the same justice meted out to the police officer?  Doesn’t the accused drug kingpin, the accused white collar criminal, the accused prostitute, the accused turnstyle jumper, don’t all of them deserve the same process that is given to the privileged?  For that is what Donovan and McCulloch created, if only unwittingly.  They created a class of special privilege before the law in their jurisdiction.  But neither American jurisprudence nor Christian theology can accept that.

In the summer of 2014, two African American men were killed by police on the streets of the cities of our country.  Because of the circumstances of their deaths, and because of a cellphone video, their cases did not fade into the noise that is the awful accompaniment to far too much of the lives of communities of color in America today.  But two prosecutors, perhaps inadvertently, used their power and the grand jury process to undercut one of the most cherished of the pillars of the American dream – that all are equal before the law.  We now can only wait to see whether the cries of “Hands up – don’t shoot” can resurrect the appearance of our equality that is basic both to how we consider the American experiment in democracy, and how we approach our God.

R. Ward Holder is a Professor of Theology at Saint Anselm College. His research focuses on the history of the Reformation, in particular the thought of John Calvin, and increasingly on the field of political theology as well.