Are the charges in Baltimore about justice or crowd control?

No decision on charges should ever be made on the basis of satisfying the demands of demonstrators or under the threat of violent demonstrations. Crowd control is not a proper component of prosecutorial discretion and is inconsistent with due process. Prosecutorial discretion should be exercised on the basis of an objective application of the law to the facts and not on the basis of the impact it may have on the crowd.

Our nation has a sordid history of justice by mob rule, particularly in the South where the threat of violent demonstrations and lynching too often influenced the outcomes of trials. African-Americans were commonly the victims of mob injustice. But the denial of due process is no less serious when the demonstrators are largely African-American. Nor is it less serious when the demonstrators are generally right in demanding equal treatment from the police, as they are in Baltimore.

I recall observing a criminal trial in Beijing in 1980, where, before the judges rendered their decision, they opened the doors of the courtroom and welcomed in “the masses.” A group of 50 or so demonstrators demanded a conviction and long sentence, which the judges then duly imposed. “This is real democracy,” my official guide insisted. But democracy, real or otherwise, has only a limited role to play in a justice system governed by the rule of law, rather than the rule of the crowd.