Prison Law Blog

Sara Mayeux

Oscar Grant, Johannes Mehserle, and the Prison Blogger’s Dilemma

with 5 comments

Working through my reactions to the widespread anger over the Mehserle verdict has been a quandary for me since, as will probably be apparent to regular readers of this blog, I don’t believe that prison—and certainly not prison the way it’s practiced in California—is a very good solution for almost anything our society uses it for. Angry as I am about Johannes Mehserle’s killing of Oscar Grant, and about the whole set of social and cultural and economic circumstances that made such a killing not only possible but all too likely—it’s hard for me to direct much of that anger, if any, towards the fact that Mehserle may not serve as much time in prison as many would like to see him serve.

Americans truly are optimists, I often think, because against all the contrary evidence of both the distant and recent past, we turn again and again to the theater of the criminal trial in the hopes that maybe this time it will provide what we want out of it: justice, healing, revenge, a righting of wrongs, an undoing of the past, a glimpse however fleeting of a better world than this one. But of course, so many of those disappointed by the Mehserle verdict knew all along how silly that optimism seems, far better than I know it; they’ve known this same disappointment every day of their lives, in the form of pieces of paper too numerous to count, not just the piece of paper that was read out loud yesterday in Los Angeles. I don’t mean to imply that we’re all optimists, or even that any of us should be.

The truth is, the criminal justice system, its name notwithstanding, can only be reliably expected to provide law. Anything else it might offer in a particular case is just lagniappe; it can never be counted on. As my professor Pam Karlan once explained, justice and law are not the same:

The great Mexican revolutionary Benito Juarez explained his plans when he became president this way: “For my friends, grace and justice; for my enemies, the law.” He understood the difference between law and justice. It’s important to see that if the rules are not just, then the law of rules is not a rule of law. Just rules are not just rules …

If law is not always justice, it is even less often healing. I don’t doubt the genuine pain felt by Oscar Grant’s family upon learning the verdict; but I also don’t doubt that no verdict, and no sentence, could ever be commensurate to the pain they felt upon learning of Oscar Grant’s death. The technical degrees of homicide can never be an answer to a mother whose child has been killed, or a daughter who will never know her father. Whatever civil damages the family recovers will be, if they are anything at all, a comfort, not a salve. In 1911 a justice of the California Supreme Court wrote:

No rational being would change places with the injured man for an amount of gold that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages.

If the gun enhancement sticks, Mehserle could be facing five to 14 years in prison. In a sane world, maybe something in that range would seem like an adequate sentence for a killing that many believe was intentional in the moment, but that no one has suggested was premeditated at any great length. In the world we have, where men have been sentenced to far longer for possessing a cotton ball of heroin or a marijuana joint, any sentence Mehserle receives will seem laughably short in comparison. But the tragedy of this case is not that doctrines like manslaughter and reasonable doubt protected Mehserle; it’s that we know too well they don’t protect too many other defendants who never wore police uniforms. It’s not that some vestige of proportionality might make it into Mehserle’s sentence; it’s that there are so few such vestiges left in our justice system.

Perhaps someone more enlightened than I can suggest what restorative justice, rather than retributive justice, might look like in this case. In the system we have, the most we can ask of Johannes Mehserle to atone for his crime is that he sit in a cage for some number of years. In an ideal system, what might we want to ask of him instead, or in addition? A challenge for people like myself who are uncomfortable with the kneejerk reliance on imprisonment as punishment in this country is to explain what the alternative would be. In all honesty, it’s a question I’m still working through.

In the meantime, though, I can at least join in the calls by several commentators for the rest of us to work towards systemic reform, maybe not in the naïve hope of an ideal world, but simply with the practical goal of making tragedies like this not just less likely, but less possible. For while the legal system cannot provide everything we sometimes ask of it, it can and does structure individual incentives and social contexts in powerful ways. If we do nothing to recalibrate the system going forward, then in effect, we simply acquiesce in and perpetuate the warped incentives and contexts that will continue to lead to tragedies like this one. I’ve rounded up a few examples of commentary on the big-picture, systemic questions raised by this case below:

  • Jakada Imami of the Ella Baker Center: “We must focus on continuing to transform the system that recruited, trained and armed Mehserle and thousands just like him. Furthermore we must continue to address the fact that young men of color, like Oscar Grant, are socially and politically criminalized every day. Our cities must shift the way resources are spent so that we invest in love and help instead of in fear and harm.” (See also this earlier commentary: “I have been an activist for far too long to think that sending someone to prison ever sets things right.”)
  • Berkeley law professor Jonathan Simon: “What we need to do now is move beyond the focus on what Mehserle did and focus on the underlying police policies and practices involved.”
  • Adam Serwer at TAPPED: “In the thrall of that fear we’ve done more than just cede civil liberties; we’ve come to accept extraordinary government power over life and death in the name of Keeping Us Safe. … War on Drugs, War on Crime, War on Terrorism. There’s always another War. The question is, when will we stop being afraid?”

5 Responses

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  1. […] that Oscar Grant was murdered. Moreover, I've long been unclear on the good of what, Sara Mayeux, in this post, calls punitive justice. I'm not simply unclear on the good of punitive justice because it (Read […]

  2. I agree with your general points, but I was curious about your “marijuana joint” link so I clicked through and checked it out. I think that it’s a little bit disingenuous to describe a 3-strikes offender arrested for possessing more than a quarter-pound of marijuana, scales, and multiple plastic bags within the “Drug Free Zone” radius around a daycare center as someone serving a long term because of “a marijuana joint.” It may have been a joint that brought him to the police’s attention, but I’d probably blame his public drug dealing and history of felonies before I’d blame either the joint or the punitive state sentencing policies in this particular case.


    July 12, 2010 at 6:58 am

    • Thanks for reading. I take your point that the case was ultimately about more than just a “marijuana joint.” I do think though that sentencing enhancements for recidivism, “three strikes,” “drug-free zones,” etc. are precisely among the “punitive state sentencing policies” that have undermined principles of proportionality in our system. Once you have the possibility of 35 years for dealing marijuana, there’s going to be a pressure to ratchet up for anything that’s violent or that hurts people. Different people will disagree on whether this means anything, but I think it’s worth noting that in much of the world 25 years is the max for first-degree murder.

      Incidentally, on “drug-free zones” generally, here’s an interesting recent development:


      July 12, 2010 at 7:14 am

  3. You bring up very interesting and thought provoking points in this piece. While I am not sure what the answer is to this paradox, it will make me think more. However, I completely agree with the focus needing to shift toward the system and specifically bart police. As I followed the trial on my computer, I remember when the defense was claiming that BART police didn’t have clear regulations on where to holster guns and tasers to prevent this, and that BART police weren’t given enough training. All I could think was that still made him guilty, but they were implicating the whole system as an accomplice too. In the end his punishment will not restore Oscar’s life even if taking him off the beat prevents him from doing it again. If the whole system is created with mistakes like that built in as excuses, no justice is served.


    July 12, 2010 at 3:28 pm

  4. […] a comment » Sara over at the Prison Law Blog reflects on the Oscar Grant murder trial, Americans truly are optimists, I often think, because […]

    Poison Paragraphs

    July 15, 2010 at 8:16 am

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