Justin Hansford is executive director of the Thurgood Marshall Civil Rights Center and an associate professor of law at Howard University.
This is a sign of hope and change. The process should now come full circle. The next prosecutor — presumably Wesley Bell, the Democratic nominee — should reopen the Brown case.
Since 1991, McCulloch presided over a thinly disguised system of plunder. The 2015 Ferguson report revealed that, for years, the police targeted communities of color for heightened traffic enforcement to fill their coffers. This racket, at the expense of Ferguson’s most marginalized communities, combined with McCulloch’s preternatural hesitance to bring charges against police for killing unarmed black people, created a powder keg that exploded after the killing of Brown in August 2014.
McCulloch, though, is best known for his investigation of Wilson. Lawyers, scholars and commentators around the country, including a Harvard law professor and a former Supreme Court law clerk, have raised serious questions about how he handled the case, particularly in regard to a protracted grand-jury process that served to deflect responsibility for the outcome. His office “mistakenly” gave the grand jurors the wrong law to consider for the majority of the process, and McCulloch himself admitted shortly thereafter that he knowingly allowed a witness to give false testimony that helped Wilson’s defense.
Still, the “good ol’ boy” network in St. Louis protected McCulloch with a wink and a nod. An effort to challenge his ethical fitness was denied. A few months later, a local judge scornfully dispatched a lawsuit arguing that McCulloch failed in his duty to faithfully enforce the law.
Young people across the country caught a glimpse behind the veil, witnessing in real time how process dictates product in law enforcement. They saw prosecutors indicting black and brown people every day in an orgy of mass incarceration, while too often reserving their power of discretion to help law enforcement evade accountability.
McCulloch’s cynical performance was one of the sparks that would alter the course of protest history. Notwithstanding the gut punch that was the murder of Trayvon Martin, the Black Lives Matter movement barely existed until Brown was killed. Significantly, it was the non-indictment — the complete failure of the law to provide redress — that, three months after the shooting, catapulted the “moment” into a “movement.” Without McCulloch’s cartoonish defiance, there likely would not have been a Black Lives Matter movement as we know it.
Bell’s platform, which articulates a desire to end mass incarceration and reform cash-bail practices, promises a level of systemic change for the people of St. Louis County that goes beyond the appointment of a special prosecutor in cases involving police violence. If Bell can implement the reforms he has promised, that will be perhaps the broadest impact created by this election.
But Brown’s killing remains a gaping wound in the nation’s psyche.
Even in defeat, McCulloch continued to defend his handling of the case, arguing that the federal investigation into the Brown incident, which found no violation of federal statutes, vindicates him. The problem with this reasoning is that the federal investigation only determined that there were no grounds for federal charges. Even former attorney general Eric H. Holder Jr. has argued that the federal civil rights standard of proof is “too high,” making it ineffective as a backstop for local prosecutors’ failures. The fact that the evidence gathered did not satisfy a heightened federal standard for a federal civil rights case doesn’t clear Wilson of all wrongdoing, especially after new troubling facts emerged with the release of the film “Stranger Fruit.” And Wilson was never charged with a crime, so reopening the investigation would not raise any issue of double jeopardy. It’s the right thing to do.
While it is true that charging and possibly even convicting Wilson would not end mass incarceration or create the broad structural change we need, it would have significance. The same desire that motivates the proposed Emmett Till Act, which encourages the Justice Department to investigate unsolved cases of racial violence during the civil rights movement, also motivates this call to finally have an honest consideration of Brown’s killing in a courtroom.
We need community healing, and we need to believe that this nation is still capable of pursuing justice.