Justice is Not Blind

There have been two recent cases in which no-knock SWAT-style drug raids have led to the death of raiding police officers. Both men who killed raiding officers had prior run-ins with the law. In one case, no drugs found in the raid. In the other, drugs were found. One of these men is going to be tried for capital murder, with prosecutors seeking the death penalty. The other one the grand jury refused to indict.

One is black, one is white. Guess which one?

Guy is black, Magee white. And while Magee was found to have acted in self-defense, prosecutors are seeking the death penalty for Guy. He remains in jail while he awaits trial.

Historically, police serving warrants were required to knock on a door, announce their presence, and wait for an answer. But in SWAT raids, this is often no longer the case. Police aren't required to announce themselves if they believe the circumstances present a threat of physical violence, or if they believe evidence would be destroyed. According to a study by the American Civil Liberties Union, no-knock warrants are used in around 60 percent of drug searches.

Like Guy, Magee was initially charged with capital murder, which is punishable by death. But before Magee's trial, a grand jury found there was not enough evidence for him to stand trial on that charge. "In essence it was a ruling in self-defense," DeGuerin said. Guy has been through the grand jury process as well, his attorney said, but in his case, the grand jury allowed prosecutors to move ahead with capital murder charges. So while Magee awaits trial for felony possession of marijuana, Guy awaits potential execution.

Aristotle says that justice is treating relevantly similar cases similarly. That's helpful in a way, but it's purely formal: we still end up having to use judgment and rhetoric to reason about what constitutes relevant similarity. We can't go into justice with a blindfold on, because if we do we'll end up unable to do the work of justice at all.

These cases look a lot a like, at first, and we might be tempted to say that the grand jury is probably informed by racism in electing to prosecute the one and not the other. But there are differences, too, which we have to consider.

The first difference is the presence of drugs. But that, if anything, seems to mitigate in favor of Guy: he was the one who didn't have any drugs! On the other hand, "drug paraphernalia" was found, so the police and prosecutors may simply believe they were unlucky in the date of the raid. Still, you can't prosecute the guy for what you didn't catch him doing, and as far as the raid is concerned, no drugs were found.

The second difference is in the kind of prior trouble the men encountered with the law. Magee had two prior DUIs and two prior marijuana possession: and even though we take DUI very seriously as a society now, it's still an offense without violent intent (though it may, by sad accident, have violent result). Guy's priors were a little different: robbery, theft, burglary, and possessing a firearm while a felon (itself against the law).

Now you might say that we should judge their guilt or innocence based on the current facts of the current case, not on their priors. Even if we grant that point for argument's sake, though, we can't ignore the priors insofar as they are directly relevant to the current case. To whit, Magee was entitled to defend his home with a firearm, whereas Guy was committing a crime by even making arrangements to do so.

In that light, the grand juries' differential behavior begins to make a kind of sense. Magee could be said to be making a very honest and understandable mistake in defending his home with his rifle; Guy cannot be held to have been innocent of plotting to commit a crime with his firearm, because arming himself in that manner was itself a crime.

All that said, capital murder strikes me as an excessive charge for defending your home against violent intrusion by attackers who do not even bother to identify themselves as police with a lawful warrant. Such actors take their lives in their hands, and citizens should not be put on trial for their lives if the police's choice to run this risk ends up with them getting shot. Reason magazine notes a similar case that ended up with the man in prison for ten years. That's an injustice, when the police purposefully elect to raid your home at an hour when they expect to rouse you out of a sound sleep, dazzle you with a flash-bang grenade, and then storm your home before you can think. They must be held to be assuming the risks of such a rash course of action.

Even so, we don't have to appeal to racism to explain the difference in these cases. The cases are relevantly similar in some respects, but relevantly different in very important ones. A different outcome is not proof of injustice.