Thursday, January 23, 2014

On prejudice, politics and prosecution

Here we go again.

In the wake of the tragic death of Corey Stingley and the need to determine whether the men who restrained him are criminally culpable, folks are sorting themselves out on the question of whether charges should have been brought - often based on pre-existing beliefs about things like crime and race.

I don't know if a crime should have been charged. And I am pretty sure that a good number of those who are protesting, marching, declaiming and dismissing don't either.

I understand the concern. This was an awful event that shouldn't have happened. I appreciate that there is a history that causes people to be concerned about disproportionate responses to young black males. While I think, in 2014, that much of that concern is overstated, it is understandable.

But to recognize that is not the same as saying that a crime was committed.

In order to have an intelligent opinion on whether the patrons who restrained Corey should have been charged, you would have had to have done the work that the District Attorney's office did. You would have to have reviewed all the evidence - not some version of it provided to you by people with a position to defend. You would not merely ask yourself "what do I think happened here?" You would also need to decide whether you could prove to someone else that the men to be charged acted with criminal intent beyond a reasonable doubt.

Whatever views you hold about the nature of society or race in America or the nature of the crime problem in Milwaukee won't help you answer those questions.

On the one hand, criminal charges should not be brought to assuage offended communities or send messages of inclusivity. They should not be brought because they fit some narrative we believe about "injustice" or a system that does not work for people "of color."

I understand that some folks believe that no one has a right to restrain a lawbreaker. This is not an accurate statement of the law and strikes me as a sadly empty view of what it means to be a community. It suggests that we are all feckless supplicants who must wait for the authorities to do for us what we might need to do for ourselves.

On the other hand, your belief that crime is out of control and that citizens have a right to defend themselves doesn't get you very far either. The fact that the men in question were restraining a lawbreaker was not a license to do whatever they wanted.

I have heard a few people say that Corey Stingley wouldn't be dead if he hadn't stolen something or fought with the men who tried to restrain him. That's true, but not very helpful. It wasn't wrong for other patrons to restrain Stingley. It would be wrong for them to choke him to death. It would, under the law, be wrong for them to act with intent to harm him or to create an unreasonable and substantial risk of death or great bodily harm of which they were aware.

Being "tough on crime" or in favor of "self defense" won't help you decide whether that happened.

But, being human, our preexisting beliefs will affect how we view the evidence. If you believe that it is "open season" on young African-Americans, you're going to be more likely to view the facts here in a way that supports criminal charges. If you don't believe that - and think that certain communities are plagued by criminal behavior - you will be more sympathetic to the men who retrained Stingley.

The only way that you can counteract your confirmation bias is to be aware that you have it. Rushing to the barricades with cries of "injustice" or "thuggery" won't help.

Cross posted at Purple Wisconsin


Anonymous said...

Nice of the professor to profess not to know if a crime should have been charged and then lay out the feeble case for not charging. How can a law professor say the prosecutor would need to, "prove to someone else that the men to be charged acted with criminal intent beyond a reasonable doubt." Is criminal intent an element of each and every offense these people could have been charged with? Really?

Worse, the professor says it's not legally accurate to say there's no right to restrain a lawbreaker. Unfortunately, he's wrong about that. There is a limited commonlaw citizens arrest power IF a person has probable cause to believe a felony took place and a statutory exception for storekeepers and security guards. Neither of these exceptions applied in West Allis.

I'd really like the professor's legal justification for his statement that, "[I]t wasn't wrong for other patrons to restrain Stingley." Why not, exactly? Where is the legal justification for their actions? Actions, mind you, that caused a boy's death.

I only hope the Stingley family finds a lawyer to sue the gas station's insurance carrier and litigate the killers into the poorhouse.

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