What is real justice for Eric Garner?

Editor’s Note: Mark O’Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

Story highlights

This week marks one year since Eric Garner died after being placed in a chokehold by a police officer

Mark O'Mara: The settlement may not feel like a "victory," but real justice is about reforming law enforcement

CNN  — 

This week marks one year since Eric Garner died after being placed in a chokehold by New York police officer Daniel Pantaleo. New York City Comptroller Scott Stringer issued a check to Garner’s grieving family for $5.9 million – part of a settlement agreement that, in his words, was “in the best interests of all parties.” There was, however, no admission of liability.

For Garner’s family, the settlement does not equal justice. They want indictment. They want a fair trial. Tuesday, the family gathered for a press conference and called upon Attorney General Loretta Lynch to deliver justice in the form of criminal justice.

Most people who look at an event where one person died at the hands of another would demand criminal charges to meet the definition of justice. It is a natural response. Criminal liability, however, is reserved for specific fact patterns defined as criminal by state or federal laws.

Mark O'Mara

It’s easy to look at a robbery, a burglary, or a cold-blooded murder, and know the perpetrator should be held criminally responsible. But most of the time one person is wronged by another – as in a car accident, for instance – and the offending party is not held criminally responsible. Rather, they face civil liability.

Civil courts in the United States do not issue prison sentences, and they cannot impose sanctions other than ordering the payment of a money settlement. In the case of Eric Garner, the city saw the writing on the wall, and they offered a considerable sum in lieu of facing a civil jury. This is considered “justice” according to our American civil court system.

Related: Key figures in Eric Garner case speak out one year later

But Eric Garner’s family doesn’t feel this way. “This is not victory,” Eric Garner’s mother said. “Victory will come when we get justice.” Like most families aggrieved by the loss of a loved one, they have found that a check – no matter how large – offers little consolation. While the family may never find peace or justice from the writing of a mere check, without the assignment of criminal liability, writing a check is truly all that is left for the city to do.

One can sympathize with the family’s frustration that a grand jury failed to indict Pantaleo. However, the other side of the argument goes that the grand jury has examined thousands of documents, viewed multiple videos (not just the video seen by the public), and heard from over 50 witnesses. The jurors understand more than anyone else the full context of what happened. They were instructed on the law, and they determined there was not criminal liability.

Our criminal justice system works under the premise that no one should be convicted of a crime unless a jury is convinced, unanimously and beyond a reasonable doubt, that a crime occurred. It is a very high standard and a stark contrast to a civil jury’s standard. A civil jury holds a person responsible under what’s called a preponderance of the evidence standard – the lowest standard of proof necessary – where an aggrieved party must convince a jury it is simply more likely than not that they should prevail.

The Garner family’s call for a federal investigation has been heard. Even as the attorney general gets involved, the investigation is likely to reach the same conclusion as the grand jury. It’s possible the investigation may find Eric Garner’s civil rights were violated, and while that’s not a murder conviction, it could offer some sense of justice.

But what is justice, really, in this case? Nothing can bring Garner back to his family. Nothing can replace him. While an indictment and conviction may provide some satisfaction or closure, real justice pertaining to this case will only come if there is significant reform.

Justice will come when other police officers think twice about how they use force, when the cops who don’t deserve to wear the badge are removed and those who do deserve it are paid well, trained well and have regained the trust we placed in them.

Justice will come when law enforcement agencies get the funding they need to apply more community-based policing. Justice for Eric Garner will come when our justice system finds a way to reverse the racial inequities that plague it from bottom to top.

In this case, the city of New York did the right thing by negotiating the $5.9 million settlement with Garner’s family. But that payout won’t represent justice unless the city backs it with real efforts to ensure that law enforcement doesn’t repeat the mistakes that led to Garner’s death.

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