Lon Fuller On The Inability Of The Judiciary To Police The Police

In The Morality of Law: Revised Edition (Yale University Press, New Haven, 1969), Lon Fuller writes:

In this country it is chiefly to the judiciary that is entrusted the task of preventing a discrepancy between the law as declared and as actually administered. This allocation of function has the advantage of placing the responsibility in practiced hands, subjecting its discharge to public scrutiny, and dramatizing the integrity of the law. There are, however, serious disadvantages in any system  that looks to the courts as a bulwark against the lawless administration of the law. It makes the correction of abuses dependent upon the willingness and financial ability of the affected party to take his case to legislation. It has proved relatively ineffective in controlling lawless conduct by the police, this evil being in fact compounded by the tendency of lower courts to identify their mission with that of maintaining the morale of the police force. [pp. 81-82]

There is little need to emphasize the topicality or relevance of these words, originally uttered in 1964 by Fuller, during the delivery of the Storrs Lectures on Jurisprudence at Yale Law School. Still, one is almost unavoidably drawn to the last sentence of the excerpt above. The considerations raised there are especially worth revisiting. (Fuller’s larger project, of course, is to argue that law-abiding behavior is better ensured by a consideration of the moral weight attached to any injunction of the law.)

In the Michael Brown and Eric Garner cases, both of which resulted in acquittals and failures to indict the police officers, it was transparent to most dispassionate observers that the judiciary did not see its work as upholding the law, as much as it saw it as supporting the police force, a ‘partner’ in the work it was engaged in elsewhere. Prosecutors and district attorneys work with police forces to enforce the law; they were not interested in bringing any of their ‘co-workers’ to justice, to subjecting them to the same standards employed on other legal subjects.

These facts are worth keeping mind when we think about the developments in the latest case of murderous policemen: the shooting, in South Carolina, of Walter Scott, an unarmed black man, supposedly for grabbing an officer’s stun gun. The police officer, Michael T. Slager, who shot him in the back as he ran away–and then planted evidence, the allegedly stolen stun gun, next to Scott’s body–is now facing murder charges. My first reaction to this story dipped deep into a constantly replenished well of cynicism:

My guess is, the new strategy is go ahead and indict, and avoid the fuss that will be made if you don’t. You can always acquit later with the right kind of jury.

Hours have passed since I wrote the comment and I see no reason to reconsider. Video evidence–the kind that led to the formulation and pressing of the initial murder charges–has never been considered probative when it comes to assaults on black men by police. And as always, the enduring and transient members of the judiciary–like the jury–will, in all likelihood, worry more about the hit the morale of the good police officers of South Carolina, and perhaps nationwide will take. Such dangerous work, such little reward; surely these men in the line of duty, standing shoulder to shoulder with us in the administration of the law, should be forgiven their minor transgressions?

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