“Justice delayed is justice denied.” We have all heard this saying, but what does it really mean? This legal maxim means, when there is equitable relief available to an injured party, but that relief is not given in a timely manner, then it is as if there is no remedy at all. Why is delayed justice, leading to no justice, normalized within the United States criminal justice system?
One answer to this question lies with the statements of our current president. President Donald J. Trump has claimed time and time again that he is a “president of law and order.” For a president adamant on being a man of law and order, leading a country that is “tough on crime,” it seems as if this law and order attitude does not extend to white men and women who tout bigotry and inflict police and other racial violence on Black bodies. We see this contradictory attitude when President Trump defended white nationalists in 2017 by declaring that there were “some very fine people on both sides” while also calling the words “Black Lives Matter” a “symbol of hate.” The question is not whether Black people deserve justice, but rather when will justice be served.
Why does justice take too long?
I. Investigations
“I can’t breathe.” These are the last words of Eric Garner, a Black man who died at the hands of a police officer in 2014 in New York City. The officer who held Garner in a chokehold was never criminally charged for Garner’s death. Richard Donoghue, U.S. attorney for the Eastern District of New York, admitted that Garner’s death was a tragedy yet declared that after a years-long and exhaustive investigation that the “evidence does not support charging the police Officer Daniel Pantaleo with a federal criminal civil rights violation.” The rallying cry of “I can’t breathe” from protesters has not stopped because, after a five-year federal investigation with little to no updates, justice was delayed and ultimately denied by the Department of Justice’s decision not to prosecute. As Garner’s mother, Gwen Carr said, “It’s been five years – five years we’ve been on the front lines trying to get justice.”
In addition, justice has been delayed for Breonna Taylor. The officers who killed her have still not been charged or arrested. Attorney General Daniel Cameron, who is now in charge of the Breonna Taylor investigation, said “[t]o make sure that we are doing a thorough job in investigating all matters that come through this office…We are looking at every aspect and component of this case and not just the incident of the shooting of Ms. Taylor but also leading up to the shooting and post-shooting.”
Why conduct an investigation that will further delay the journey to justice? An arrest requires probable cause, which requires a reasonable basis for believing that a crime may have been committed. Before an arrest is made, there may be a pre-arrest investigation where a determination is made whether a crime has been committed, who was involved, and whether there is sufficient evidence. An investigation can include monitoring surveillance, obtaining bodycam footage, and interviewing witnesses. Even when there is video evidence of an incident of racial violence inflicted on Black bodies by white perpetrators, such as the video of George Floyd’s death, investigators may decide to gather additional evidence. Hennepin County Attorney Mike Freeman, on the investigation of George Floyd’s death, said that investigations sometimes “take a little time.” He mentioned how the prosecution of Baltimore officers charged in the death of Freddie Gray “moved too quickly and lost the case as a result . . . We have to do this right, and that’s what we’ll do.” An investigation may delay a case, but it may also be warranted so the likelihood of an arrest and conviction is greater.
However, in cases such as George Floyd’s, where George Floyd was pleading for his life while under the restraint of a police officer using deadly force, a crime was clearly committed. It is clear that a crime was committed when a police officer used excessive force and placed Eric Garner in a chokehold, leaving Eric Garner lifeless. It is clear that a crime was committed when three police officers used deadly force and fired more than 25 bullets at Breonna Taylor while she was in the safety of home. When a crime so violent clearly happens, the person who committed it should be arrested, immediately.
The public’s patience has grown thin regarding the multiple cases involving Black victims of police and other racial violence because these cases are stuck in endless investigations. Investigations are an important part of the criminal justice system, but are lengthy investigations delaying justice for Black victims of racial and police violence such as Eric Garner, George Floyd, and Breonna Taylor? How long is too long? I wonder how long these investigations will take and if they do more harm in delaying justice than intended.
II. The revolving door of prosecutors
Another reason why it seems that justice is taking too long is because of the changes of prosecutors in these cases and the lack of a healthy relationship between prosecutors and the public. In the Ahmaud Arbery case, there have been four prosecutors who have been assigned to handle this case in rapid succession. The first two prosecutors assigned to the case, District Attorneys Jackie Johnson and George E. Barnhill, recused themselves due to personal conflicts. The third prosecutor, Tom Durden, was removed because of the lack of resources that his agency had and the concern of S. Lee Merritt, lawyer for Ahmaud Arbery’s family, that Durden would not be able to conduct an impartial investigation. The fourth prosecutor currently assigned to the case is Cobb County District Attorney Joyette M. Holmes, a Black woman who said in a statement, “the call to serve will not be taken lightly . . . it’s not strictly about the prosecution of a case or at least not that which only leads to convictions but by making sure that we serve everybody – victims, participants, the defendants.”
The revolving door of prosecutors makes it so that there is a constant change in who handles the case. Justice is, therefore, delayed. But, there may be a reason why a change in prosecutors may benefit a case. District Attorney Joyette M. Holmes says she is “intentional in the pursuit of justice” and is committed to “effectively bringing forward the evidence in this [Ahmaud Arbery] case.” With District Attorney Joyette M. Holmes as the presiding prosecutor, there is also now a robust set of resources such as an office of 45 lawyers, an annual budget of $8.5 million, and the experience of prosecuting more than 6,000 new felony cases alone in 2018. As the Ahmaud Arbery case grows in size and magnitude, Georgia Attorney General Chris Carr, who announced that District Attorney Joyette Holmes would take over the case, said, “Attorney Holmes is a respected attorney with experience, both as a lawyer and a judge, and the Cobb County District Attorney’s office has the resources, personnel, and experience to lead this prosecution and ensure justice is done.” A change of prosecutors may delay justice, but it may also be warranted to allow for a more experienced and well-resourced prosecutor to take charge of a case.
Even with an effective and experienced prosecutor, the public continues to demand justice and answers. There needs to be trust between the public and the prosecutors. The public waits and grows uneasy as the lives of Black people continue to be at risk and updates and answers from the prosecutor’s office are hidden and delayed. Attorney Harold Fernandez Pryor, Jr., candidate for Broward State Attorney said in an interview that, “the State Attorney should be out front and involved in the community… should have open and transparent practices to keep the community abreast as to policies regarding the criminal justice system.” If prosecutors build a healthy relationship with community leaders, local organizations and activist groups, and local ministries, especially in communities of color, then there can be an open dialogue between the public and prosecutors regarding changes and cases. With a healthy relationship, prosecutors can give thorough explanations and updates to the public regarding whether they plan on looking into a case, the resources they plan to use, and an explanation of why a certain decision was made. Such a relationship built on trust may not always give the public their desired outcome, but it can give the public some of the clarity and justice they seek in a timely and transparent manner.
A new law, a new mural, and statues removed are not enough.
When there are constant cries for justice from the public, what is given in return? We have seen a rise in the well-meaning but ineffective response to calls for justice from numerous local governments. In Louisville, “Breonna’s Law,” an ordinance banning no-knock search warrants was passed in response to the death of Breonna Taylor. Numerous cities such as the District of Columbia and New York City have commissioned Black Lives Matter murals along their streets spanning several cities blocks. There has also been a surge of statues being removed in response to the recent killings of George Floyd and Ahmaud Arbery. Statues and memorials of Confederate soldiers, prominent slave owners, and opponents of racial justice have been torn down.
Though these are small steps towards acknowledging the racist past and present of this country, are these actions enough? Are they performative? When Black people are unjustly murdered, threatened, and sentenced to prison, are murals and new street signs enough to eradicate the clear systemic and systematic racism that continues to run amok in this country?
When there are demands for justice and change, a new mural, a new law, or a statue being torn down is not enough. Demands for police reform and accountability, affordable housing, educational programs, and more by the concerned public need to be addressed and delivered by our government. The constant call for these demands cannot be satisfied with surface level and performative actions. Those actions also delay justice. The protests and demands will not stop because of a new mural. What needs to happen to expedite justice is our government leaders providing the change we seek.
Civil rights leader Fannie Lou Hamer famously said, “I am sick and tired of being sick and tired.” These words reign true today among Black people who continue to seek justice for police and other racial violence. How long is this wait for justice? Black people are asking for real changes to a system that oppresses, mistreats, and benefits from them and not having a specific answer as to when justice will come can be discouraging. I believe that justice doesn’t necessarily have to come years later. Justice can be delivered with swift action when an officer or a white vigilante clearly commits a crime resulting in the deaths of Black people. Justice can be delivered with transparency and open dialogue from prosecutors when the lives of Black people are at issue. And justice can be delivered with immediate policy changes that Black people have been demanding for years such as police accountability and funding for youth educational programs. So, yes, the delivery of justice may take time, but it doesn’t have to. Our country must be willing to put in the effort to change, so that Black people can get the justice they deserve and so that we no longer have to utter the words, “justice delayed is justice denied.”
Asantewaah Ofosuhene is a second-year student at Northeastern University School of Law. Before law school, she graduated with honors with a Bachelor of Arts in Social and Cultural Analysis with a Concentration in Blackness and Communications from New York University. At NUSL, Asantewaah is a Criminal Justice Teaching and Research Assistant and Webmaster for BLSA. She also is the creator of The Legal Breakdown, a platform to explain legal news to laypeople and the BLSA Admissions Magazine. She interested in pursuing intellectual property litigation, though, with her background in education reform, civil rights and criminal justice reform is still her passion.