“The only means of preventing man from degrading themselves is to invest no one with that unlimited authority which is the surest method of debasing them.” – Alexis De Tocqueville
As I watched George Floyd from a prison cell, pinned to the ground, gasping for air and pleading for his momma as a knee of a police officer cut the circulation of his breathing, I realized that I was seeing an accurate depiction of why I switched my motivation from changing to gain my freedom, to simply understanding and improving on my humanity. I had come to understand that it was my humanity that made freedom significant, and I could not appreciate the latter without appreciating the former. I had come to understand this within the context of my incarceration and rehabilitation, but when I saw Derek Chauvin, I realized that my conviction contained a broader principle: Chauvin’s freedom could be of no more value without his humanity than my own, and it had cost an innocent man his life. A man who was free, a police officer, could not live up to a responsibility that was commensurate to his degree of freedom – this came as a warning to me.
There was more to discover, however, because I wasn’t satisfied with this realization. No matter how enlightening, something more profound was begging to be discovered from the tragedy. The mystery crashed within me. It pulled on my conscience like a moral current. Something powerful had been left at the scene of the crime that the outrage, protests and media were not capturing. A movement was brewing, claims of systemic racism and calls for defunding the police were boiling over, yet nothing seemed to give voice or form to that “something” that remained breathing and pleading, long after George Floyd’s body had stopped doing so. Long after his body had been removed from the scene, a certain constitution lingered there as evidence waiting to be discovered.
Nothing happens in a vacuum; in order to ask proper questions and obtain accurate answers, questions asked must take account of the entire context surrounding any particular action or event. Here in America, we have a government that is supposed to be a servant of the people. So, how do we get from a public servant taking an oath to serve and protect, to subverting that oath by suffocating a citizen to death? Racism? White Supremacy? The case of Tyre Nichols, an African American who was brutally beaten by five African American police officers in Memphis, while he pleaded and ran for his life similar to Floyd, seriously questions that narrative and brings into consideration Juvenal’s old dictum Quis Custodiet Ipsos Custodes?, who will guard the guardians?
The answer lies in considering our inclination to grant automatic deference to our government institutions: judicial, legislative, and executive- but especially our criminal justice system. This is because when it comes to crime, there is a common enemy that is accused, arrested and sent to jail. It is easy, even safe, to assume that those who commit crimes deserve everything that they get. Even the violation of their rights and any treatment that is less than human. But as constitutional scholar Lysander Spooner writes in “An Essay On The Trial By Jury,” “The government can exercise no power over the people (or what is the same thing, over the person who represents the rights of the people) except such substantially the whole people of the country consent that it may exercise.” Yes, this is the crux of the issue.
It is the fact that every accused person paradoxically represents our rights.
This is because the presumption of innocence is exactly what secures our rights, keeps police officers in check and preserves humanity–ours and government officials alike. This is the very humanity that allows us to retain our rights and our life–from the initial point of mere suspicion, to the point inside of the courts–where the burden of proof rests on the government to prove everything that it claims. Not before then, where we die on the streets by the very officers who bear the burden of proving to a jury of our peers the very thing that those officers claim to kill us for in the streets.
The presumption of innocence does not begin in a courtroom, nor does the burden of proof. Its logic encompasses representative government and informs the relationship between citizens and its civil and criminal justice systems. When this is not ensured by us, the presumption of innocence passes from the citizens to the State (since any right not exercised automatically defaults to the government) and once the burden of proof is taken off the state and placed on its citizens, by the same default, it is the citizens who have to prove the very rights that they have entrusted the State with securing. This means that the citizens are the ones who have to prove their humanity: in the streets, inside of courtrooms and prisons, while those in power assume a sovereignty that knows no bounds.
This reality is what is missing in the calls for justice for the murder of George Floyd. The act is not one of mere racism, or of unions emboldening bad cops. It is all of this, but at its root, the murder is an expression of an undue deference paid to our government. An undue deference that has resulted in an inverse relationship of the burden of proof and of the presumption of innocence between citizens and the state.
What was being sucked out of George Floyd was the presumption of innocence. What ultimately killed him was the weight of the burden of proof that he should not have been forced to bear. This inverse relationship also exacts a cost from officers as well. Since the presumption of innocence is not their blood type, violating it results in a blood transfusion that poisons their conscience, and they are left as moral monsters roaming the streets for more victims to dialyze their condition. Once they taste the blood of the presumption of innocence from the bodies of those whose rights they have sworn to uphold and protect (as servants that hold a monopoly on force) they cannot help but be doomed to shift the burden of proof. They become martial law incarnate and rabid, and the only crime committed can be the questioning or challenging of their authority.
This realization poses a greater challenge than just taking responsibility for our humanity; it poses the challenge of assuming a responsibility that is commensurate with our level of freedom in order to ensure both. As an inmate, I am aware of the challenge that this poses for victims of crimes. The soul of democracy, I believe, lies in their hands. There is no better opportunity to protect and ensure our freedom and humanity than to make sure that every person’s rights are granted and secured. This is critical when it comes to keeping the burden of proof on the government, even when it involves heinous crimes. Even when guilt is clear beyond a reasonable doubt. It is the surest way of preventing our government from becoming criminal– since it has been entrusted with following a strict constitutional process in order to remain alive through the body of its citizens. If it is a living constitution, then we must be responsible for its humanity.
Juries are not the only “circuit breaker in the State’s machinery of justice,” as was stated in Blakely v Washington. Before a juror is ever summoned to a trial court, there are citizens whose responsibility consists of ensuring that their Governments uphold the constitutional right of due process. This right is meant to humanize us by ensuring that “split second decisions” do not reduce justice to instinctive judgments. If this is true in our personal lives, it should also hold true for those who we entrust with the power to secure our rights to life, liberty and the pursuit of happiness. We must be reminded that the Declaration of Independence and the Constitution were founded by victims who tried to ensure that what was done to them would not be done to others. Let us learn from their mistakes in what it means to ensure the rights of all human beings.
If those impacted by crime can find any common ground with the accused, it is in the context of preserving a democratic society, where it is in everyone’s interest to not pay an undue deference to a power that constantly tests its boundaries through the kinds of prosecutions we allow. This is not an insult to our government; in fact, the burden of proof is the only antidote we can use to prevent it from producing judicial, executive and legislative vampires and poltergeists. Extra judicial zombies feeding on canaries that are, as Justice Sotomayor writes, “in the coal mines whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.” For its own humanity, we cannot let our government taste of the blood of the presumption of innocence. We must all realize what is at stake when anyone is in a position of power to suspect, apprehend, charge and prosecute.
There is nothing more significant that determines the direction of a democracy than when a police officer or a prosecutor tells you that they have the person that murdered, raped or did some terrible act. But if we are to have justice, then the government must adhere to a constitutional process while proving anyone’s guilt beyond a reasonable doubt. You must make sure that they are satisfying the presumption of innocence. They better not do anything to corrupt the investigation or jeopardize any chance of wholly convincing you that the true perpetrator is being tried with his rights ensured. This is difficult for victims. But they must understand that the criminal justice system is where the true acid test of justice takes place, and where our fundamental rights are most vulnerable and exposed.
If we do not demand a strict constitutional process, the government will accrue irresponsible power that will spillover into the dehumanization of us all. As Tocqueville further writes “A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws.” When the State presents you with a suspect, it is asking you permission to grant them an automatic deference that it does not deserve. It is, in effect, asking you to sign away your own constitutional rights. For the sake of their own humanity, do not grant this to them. They are asking you for permission to become moral monsters and you must resist this, no matter how much you may hurt or be consumed with vengeance for any crime. “Because the power to punish, Spooner reminds us, “carries all other powers with it.”
The burden of proof serves to keep the state human by limiting its power. The murder of George Floyd reveals that it was not just he who was pleading for his humanity while he was dying, it was also Derek Chauvin that was pleading for his own, long before he killed–and as he killed–George Floyd. As much as we may not want to believe it, Chauvin was asking us to stop him long before we were pleading for him to stop from our homes. Long before a crowd was demanding it from the sidewalk. We owe a responsibility to both men by honoring the presumption of innocence and holding true to the burden of proof. For it is a weight that all officials are humbled under, and are reminded of how human they are, even in positions of power.
