Over the past couple of years, we’ve seen an increase in indictments of police officers in cases of shootings, other killings and excessive force. But that number is still incredibly small — from an average of five per year over the previous decade to 18 this year, out of nearly 1,000 deaths at the hands of police. And even those indictments rarely lead to a conviction. Of course, many or even most police shootings are legally justified. Some are justified by any reasonable definition of a threat. But we, of course, want police officers to kill fewer people — as few as possible. And to that end, I think there’s an important lesson in this passage from a recent New York Times article on indictments of cops:

Even with indictments, juries will remain reluctant to convict police officers absent evidence of malice, said Eugene O’Donnell, a former officer and prosecutor who now teaches at the John Jay College of Criminal Justice in New York. “Tremendous incompetence, the worst kind of training, disregard for people is really not enough,” he said. “You’re going to have to go beyond that because the police are different.”

But convictions or no, Professor O’Donnell said, the intense scrutiny brought on by a wave of activism after the shooting of Mr. Brown, followed by this year’s string of indictments, has caused “seismic changes” in policing.

“You can absolutely be sure there’s an impact on the everyday work the police do,” he said. “This is reminding the police that they should only be using deadly force as a last resort.”

“It’s an imperfect way to fix the system, the criminalization of people,” he added. “In a way, we’re doing bottom-up reform instead of top-down reform. We’re finding egregious endings and working from there instead of proactively saying the police system is part of the criminal justice system and consequently is broken. The political sector hopes that the conversation will end there, at the bottom or close to the bottom.”

There are a couple of points to make here. First, when cops commit crimes, they need to be punished. When they aren’t, it isn’t just that justice was denied to the victims of those crimes; it also suggests a system in which the very people we entrust to enforce the law aren’t bound by it. But the second point is also important: We shouldn’t rely on indictments to fix the problem of unnecessary police shootings. And to some degree, indicting cops in these situations can be counterproductive. It can give the impression that this was a rogue cop who acted out, and who is now being held accountable. Hence, the system is working just fine.

The high-profile indictment of South Carolina state trooper Sean Groubert, which I’ve written about here at The Watch, makes for a good comparison with the Rice case. Groubert is the cop who opened fire on unarmed black motorist Levar Jones after pulling him over for not wearing a seatbelt. When the man reached into his truck to get his ID, as Groubert asked him to do, Groubert opened fire. Groubert was immediately fired and later indicted in the shooting. Both were necessary. But in the video, the dominant emotion you get from Groubert’s body language isn’t rage or anger. It’s fear. That suggests something much worse than a rogue cop. It suggests a fundamental problem with the way South Carolina trains its state troopers. Perhaps they’re getting bombarded with overstated warnings about ambushes during traffic stops. Perhaps they aren’t getting training in overcoming biases about black criminality. Perhaps they aren’t getting the necessary counseling after traumatic events. (Groubert had been involved in a prior shooting.) Or perhaps Groubert should never have been a cop in the first place, which suggests problems in recruitment and screening. The point here is that while indicting Groubert was the right thing to do, and undoubtedly brought some justice to his victim, it seems unlikely that it’ll do much to prevent future incidents.

Even if we could achieve predictable and certain accountability for bad cops (and we’re nowhere near that now), that might help to prevent corruption or to cut down on the use of force to bully or intimidate. But fear doesn’t rationalize. A cop who shoots a man reaching for his ID, who shoots too quickly at a kid holding a toy gun, who has been conditioned to see threats behind every corner, isn’t going to be dissuaded by the possibility of an indictment. His actions aren’t open to persuasion. He’s acting on instinct. You fix that through training — training in deescalation, training in recognizing and overcoming biases. Or you fix it with better hiring, better screening and better monitoring of the mental health of your officers, and by taking the guns from the cops who aren’t up to par.

I think Timothy Loehmann should have been indicted. But if he had, it wouldn’t change the fact that he never should have been in possession of a gun and a badge in the first place. Nor would it change the fact that if he was hired, there are probably a lot more Timothy Loehmanns on the force in Cleveland … and not just in Cleveland.

It isn’t difficult to understand why we tend to equate justice with indictment after a particularly heartbreaking case like Tamir Rice. By the time the young boy is dead, the system has already failed. It’s too late to talk about training, recruitment, screening, deescalation and so on. There’s only one remaining way to seek justice, and that’s to hold the individual officer accountable. It’s also true that these cases are helpful in illustrating just how difficult it can be to hold an officer accountable, even in clearly preventable deaths. As well as any other, Rice’s death and the lack of accountability for it shows how our legal and political systems have failed to produce laws and policies that reflect how we want police officers to deploy the use of force — how what’s legal and what we find acceptable have become two distinct concepts. 

But we should resist reducing our concept of justice to the presence or absence of an indictment. Real justice would not just hold Loehmann accountable; it would also address the policies, procedures and practices that allowed Tamir Rice to die. Real justice means changing those policies so that his death would have been prevented.