A Blood Sacrifice for the NYPD

American police can get away with killing someone, but heaven help the civilian who even unintentionally harms a cop.

American police can generally get away with killing someone, whether it was a reckless mistake or an act of sadism. Few expect the NYPD officer Daniel Pantaleo, who fatally strangled suspected loose-cigarette vendor Eric Garner, to get convicted of felony charges by a Staten Island jury; or for officer Darren Wilson to be convicted of felony charges for shooting unarmed teenager Michael Brown to death in Ferguson.

Even if a law enforcement officer is convicted, the penalty tends to be light — for instance, Bay Area Rapid Transit police officer Johannes Mehserle’s two-year sentence for shooting Oscar Grant execution-style on New Year’s Day, 2009.

But heaven help the civilian who even unintentionally harms a cop.

Marcell Dockery

As Marcell Dockery was marched out of the precinct on April 7, his face ran through several confused expressions, something you often see in sixteen-year-olds even when their hands aren’t cuffed behind their backs and their lives wrecked. New York’s two most widely read newspapers freeze-framed Dockery’s face into a “wicked grin” to help package this adolescent as a hate-figure for mass consumption.

Dockery is accused of setting fire to a mattress on the thirteenth floor of his housing project in Brooklyn’s Coney Island neighborhood on April 6. Two police officers, Dennis Guerra and Rosa Rodriguez, took the building elevator up to the blaze. Carbon monoxide inhalation killed Guerra; after weeks of hospitalization, Rodriguez is on permanent disability leave at half pay. Dockery is being charged with second-degree murder.

This case is important: One life has been lost, another seriously injured, a third life stands to be ruined by lengthy incarceration. But the prosecution of Marcell Dockery is also deeply emblematic of how American police and prosecutors respond to violence.

Because contrary to reassuring liberal legend, it is not just nonviolent drug offenders that fill American jails and prisons. In fact, even if every nonviolent drug offender in the United States — they make up only one-fourth of our total number of prisoners — were released tomorrow, the US would still have the highest incarceration rate in the world, barring a few tiny outliers.

The prosecution of Marcell Dockery is a microcosm of what makes American justice uniquely brutal, with several distinctive features of our criminal law and penal culture violently intersecting in it.

The Felony Murder Rule

First, although Dockery’s alleged act of teenage boredom carried no specific intent to kill, he is being charged with murder. This is the “felony murder” rule, under which any death resulting from a felony act means murder charges for everyone involved — not just the triggerman but, for example, the getaway driver and the lookout. No specific intent to kill is required.

The felony murder rule, with vague and ancient roots in the English common law, has in the past century been snuffed out in most of the Anglophone world, from India to Canada to the United Kingdom. But this medieval atavism flourishes in forty-three of the United States, including New York, where it means instant second-degree murder charges carrying a penalty of twenty-five years to life.

The felony murder rule leads to harsh grotesqueries. In Florida, this rule led to a twenty-year-old, Ryan Holle, being sentenced to life without parole for lending his car to his roommate, then going back to sleep. The friend drove off and murdered someone in the course of a drug robbery — enough to get the car owner, even though he was not otherwise involved, life without parole.

Or the case of Brandon Hein, a Los Angeles youth who in 1995 was part of a drunken teenage brawl in which one kid — not Heim — fatally stabbed another. But that was enough to get Heim — who, again, killed no one and wielded no weapon — sentenced to life without chance of parole. (Both Holle and Heim, by the way, had clean records.)

Defenders of the felony murder rule take its deterrent value on faith: Surely this harsh penalty ought to discourage people from taking part, even tangentially, in crimes that could turn lethal, or at least commit felonies with greater care. But empirical research (if we care about such things) finds no appreciable deterrent effect from the felony murder rule.

In fact, the most recent study of FBI data, by Anup Malani of the University of Chicago Law School, finds that the felony murder rule “seems to increase the number of felony deaths in a state” through perverse incentives.

In the felony murder charges against a youth like Dockery, the rule is doubly wrong. As Robert Reuland, a former Brooklyn homicide prosecutor turned defense attorney, told me, “What are you really deterring here, sixteen-year-olds acting stupid? Good luck with that!” In no other industrialized country would Marcell Dockery face murder charges for his alleged act of arson.

Juveniles tried as adults

There is also the fact that Dockery, age sixteen, is being prosecuted as an adult. This is not the choice of an ambitious prosecutor; it is hardwired into New York law, where sixteen-year-old defendants, for misdemeanors as well as felonies, are tried automatically as adults — one of the last two states, along with North Carolina, to do so. Other states give prosecutors discretion to try kids as adults (a discretion that is rampantly abused, as a recent Human Rights Watch report on Florida documented).

But some states are moving away from prosecuting adolescents as adults. In 2010, Connecticut raised the age of majority for all defendants to eighteen. This year, Illinois moved the age of majority in misdemeanors and most felony prosecutions to eighteen. Contrary to the usual panic-mongering, these two states have not seen a spike in youth crime since they changed their laws.

The age of majority for criminal offenses could and should be pushed higher still. Germany, for instance, tries roughly two out of three defendants age eighteen through twenty-one as juveniles — a policy that, despite rumbling from the authoritarian wing of the Christian Democrats, remains securely in place.

Adolescent confessions

Dockery’s counsel, veteran criminal defense attorney Jesse Young, informed the media on May 1 that his young client’s confession to the police was coerced. Dockery’s confession was certainly made without the presence of a lawyer, the teen having, according to the police, waived his right to counsel during an hours-long interrogation, as bewildered young (and older) people often do.

Is the confession true? We don’t know. But we do know that extracting false confessions from kids is easy.

For instance, the Central Park Five, who in 1989 falsely confessed to rape and assault after marathon interrogation sessions. Or Marty Tankleff on Long Island, who in 1988 falsely confessed to the murder of his parents under police pressure while the local law enforcement ignored obvious leads to another suspect. Or the seven-year-old and eight-year-old on the South Side of Chicago, who falsely confessed to murder under police pressure in 1998.

Victim and Vendetta

The Dockery case also illustrates how pretensions of impartial justice have been overwhelmed by a vindictive lust to punish, a spirit stoked by media frenzy and institutionalized in “victims’ rights” statements granted time in trials. This is amplified by several orders of magnitude when a police officer is killed or dies in the line of duty. It is also amplified by the fact that the accused is a black youth.

Immediately after Dockery’s arrest, his juvenile arrest record was illegally leaked to the tabloid press, with the New York Daily News and the New York Post eagerly reporting Dockery’s earlier charge in 2010 for reckless endangerment involving a fire set at school.

How were these charges resolved — conviction, plea bargain, acquittal? We don’t know. Only the charges were leaked, the better to smear the young defendant. Dockery is not a poster child, and the odds are high that neither, dear reader, are you. Sainthood ought not be a prerequisite for fair treatment and impartial justice in the United States.

What does the extreme prosecution of Marcell Dockery say about the US justice system?

In the past dozen years, Washington has spent millions of aid dollars to make Afghan criminal justice less of a kin-based exchange of vendettas and more of a dispassionate system to resolve conflict and contain violence. Meanwhile, our own justice system has grown more openly vengeful.

Peel back the veneer of procedure and one finds more and more instances of Lex talionis, an eye for an eye, under the guise of compassion for the victims. As angry and as sorrowful as Officer Guerra’s family must be, the fate of Marcell Dockery should under no circumstances be up to them. Nor should it be up to the Patrolmen’s Benevolent Association, whose leader, Pat Lynch, has called Dockery “a murderer” and demanded he be tried as an adult. Grief and anger are no license for vengeance if we have any pretensions at all to real justice rather than blood vendettas.

A Blood Sacrifice?

The Dockery prosecution is a test of the new Brooklyn District Attorney, Ken Thompson. By most accounts, Thompson has made some effort to make law enforcement less gratuitously brutal. But the new DA’s efforts to stop prosecuting low-level marijuana offenses have been stymied by hard pushback from the police department, to which the progressive new mayor Bill de Blasio has responded with a feckless shrug.

What will happen to Dockery? Very likely his case will meet that of 95 percent of all criminal cases in the United States: a plea bargain and no trial. Dockery could wind up pleading to the lesser-included charge of first- or second-degree manslaughter, which carry maximum penalties of twenty-five and fifteen years.

That these sentences are less than that for second-degree murder (twenty-five years to life) should not inure us to its incredible harshness on a sixteen-year-old. A fifteen-year sentence has a strong chance of wrecking a young man’s life, with devastating side effects for other family members, as well.

There is no doubt that the fatal asphyxiation of officer Dennis Guerra is a brutal misery. If this teenage boy did in fact start the fire, he will and should carry Guerra’s death with him for the rest of his life. But even if Marcell Dockery did what he is accused of doing, there is no purpose served by charging this adolescent as an adult with murder — no purpose other than vengeful sadism. The unintended death of a police officer should not require a blood sacrifice.