Benjamin G. Davis, Professor of Law at the University of Toledo College of Law in Toledo, Ohio, discusses the recent decision not to indict the officers involved in Breonna Taylor's murder and to indict only one of them for wanton endangerment...
The wanton endangerment charges did not do justice for your murder. We all know that and, from beyond the grave, we know you and all the ancestors know that. Your death is considered by the state to be unworthy of state interest.
This endemic dysfunctionalism is evidenced by both federal and state failure to respond in the law or failure to prosecute the kind of violence that murdered you and George Floyd, and injured Jacob Blake. You know that you are sitting with many, many others in the spirit world who have been at the receiving end of that kind of state violence. All the years of this endemic dysfunctionalism of our society is a tribulation.
And yet, the consistent and insistent street demonstrations about this endemic dysfunctionalism lay bare once again the inability of the three branches of state and federal government to take cognizance of this (obvious to the world) dramatic dysfunction.
For this failure at all levels is revealed for what it is: that for some it is not a bug but a consistent feature of the system of systematic repression of blacks akin to the era of segregation.
It is always the state – like Lucy yanking the football at the last minute from Charlie Brown in Peanuts (old reference) – yanking justice away in some way shape or form hat thus shows again the horror of its indifference.
And that same state – like Lucy trying to convince Charlie Brown to kick that ball – tries to convince us each time of its fairness. And, in our bones just like in your bones lying in the ground, we know this is unjust.
We know that when laws are passed they are narrowly drafted (federal hate crimes, federal civil rights enforcement) to the point of making them tools for investigations and reversible consent agreements (seeming to attempt to somatize dissent through delay) over actual prosecutions. And we know that investigations are opened with fanfare and then months or years later closed in quiet without justice being served.
We hear calls for change and calls for our greatness, but it is like Lampedusa’s “everything must change so that nothing changes” about Italy in The Leopard. A few Confederate statues come down etc, but no law change or law enforcement change occurs and there is no revisiting the continued narrowing of Bivens and the narrowing of the impact of US international human rights obligations as applied by the courts.
The same has been shown to be true with respect to prosecutions of high-level civilians for the torture, for the civil cases of present or former detainees about their mistreatment. Or for those refugees held in American concentration camps and treated with a sadistic cruelty by those who openly revel in the cruelty they can inflict on fellow humans in their lust for power. And I suspect the same will be true for the women in immigration detention who were given genocidal hysterectomies without their consent and seek justice for them and the unborn children they will never have the chance to conceive.
This system is set up to ensure permanent disfavorment for some before the state and the law. Even of the peaceable sleeping in their own bed and roused in the dark of night by state forces intent to summarily kill making ordinary life a death penalty.
All of these gruesome realities of today’s America are left unanswered so we are constrained to say that justice is not served. Avoid bringing the case and the law remains an ass. Bringing a case that is under law that makes it unwinnable makes the law an ass. As does the Constitution which, as applied, does not inspire confidence in the system nor certainty that the double security of the rights of the people – people like you Ms. Taylor – are being protected.
What happens now? The cries go up to burn it all down and the state reflexively will continue to respond to any movement and especially any violent movement by 1) repression 2) making one think what change one hoped for is fantasy 3)cooptation or 4) just killing people as Alberoni noted in Movements and Institutions.
We know that Trump can nominate and the Senate confirm on Saturday without a hearing anyone Trump wants to the Supreme Court: there is no Constitutional impediment. And for those who relish this present, that kind of domination is not seen as a bug but a feature for they seek and take their advantage when their power is minimally constrained. Norms are chimera developed by the relations of powers and thus are infinitely malleable.
One needs not require declarations of public Emergencies to impose for a period a state of exception when the everyday is the same and should be seen for what it is: a state of repression anyway. And we are not saved to quote Derrick Bell.
We look into the dark earth that covers you and feel the blood of the generations before who have suffered calling out to us. Their voices join with your voice in an angelic chorus bringing forth a deafening crescendo of light that pulls us upward toward the bright justice that is our right.
So, once again we move systemically and both vertically and horizontally in this society from the bottom up as we shake the foundations of the aggregations of privilege and proclaim in your name.
We shall change the discourse and change the narrative. We shall bring all people of good faith forward and let their fearless insistence before the sentinels of state oppression melt away the manacles with which we are threatened to get us to submit.
We cannot submit for this is our land and what happened to you and to too many others is not acceptable in our land.
And those who exploit this structure will be shown for who they are as the billionaires who turn the structure to their favor as they twist harder the vise of inequality. They prefer protecting their wealth over protecting our health. We shall through the levers of power we exercise cull the herd of those predators that prey with relish upon all before them in the name of nothing more than a perverse passion to amass more.
We shall be your balm in Gilead, Ms. Taylor, to heal our nation’s sin-sick soul. Count on us sister. Not to benefit the few but to benefit the all. The whole whoever you are, whatever you look like, whatever your circumstances, and however you think or believe. We envelop all of that and move the whole toward that just and beloved community in your name Ms. Taylor.
Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law.
Suggested citation: Benjamin G. Davis, Dear the Late Ms. Taylor: Searching for the Balm in Gilead, JURIST – Academic Commentary, September 25, 2020, https://www.jurist.org/commentary/2020/09/benjamin-davis-breonna-taylor-charges/.
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