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5/21/2015

SCOTUS and the NEW JIM CROW

“This is a book you must read!”  Many of you have probably already read it, as have I – several times!  It’s been in print since February of 2010, and has become something of a guidebook to a new movement concerned with the reform of the entire justice system.  Its Title:  “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” by Michelle Alexander.

We have been talking about a portion of that justice system in the last two posts, and now it is important to bring to the foreground what it is about that system that keeps in place an overarching control and denigration of people of color.  In spite of the election of the first African-American President of the United States, the system has not changed and will not change until more people of all races are made aware of the controls, the obstacles and the laws that keep certain people in an underclass; what Michele Alexander calls a racial caste system or undercaste. 

But first, let Alexander herself set the scene.  She tells a short story of several generations of Black men of one family, all born in the United States, who have all been denied the right to vote, starting with the great, great grandfather of Jarvious Cotton who could not vote because he was a slave; “denied the most basic freedom that democracy promises” in our Constitution. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation.  His father was barred from voting by poll taxes and literacy tests.  Jarvious Cotton cannot vote because he, like many black men in the U.S., has been labeled a felon and is currently on parole.

Alexander presents her conclusion of what the Cotton story represents.  “In each generation, new tactics have been used for achieving the same goals.  The arguments and rationalizations that have been trotted out in support of racial exclusion and discrimination in its various forms have changed and evolved but the outcome has remained largely the same…legally barred from voting…throughout most of American history…subject to legalized discrimination in employment, housing, education, public benefits, and jury service just as their parents, grandparents and great-grandparents once were. Once you’re labeled a felon, the old forms of discrimination…are suddenly legal.  As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow.  We have not ended racial caste in America, we have merely redesigned it.”

Since most Americans are reluctant to talk about caste and would insist that America has no such thing, Alexander provides a definition of what she means by racial caste—she uses it “to denote a stigmatized racial group locked into an inferior position by law and custom.”  She says, “Jim Crow and slavery were caste systems. So is our current system of mass incarceration.”  The term mass incarceration refers “not only to the criminal justice system but also to the larger web of laws, rules, policies and customs that control those labeled criminals both in and out of prison.”  There is, whether we recognize it or not, a hidden world of legalized “discrimination and permanent social exclusion” applied to members of America’s new undercaste.  She came to see that mass incarceration in the United States had, in fact, emerged "as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”

At this point, we could venture off in a number of directions.  But, one of the items that most caught my attention in the book was how the federal court system has effectively “immunized” the current justice system from challenges on grounds of racial bias and racial profiling which clearly relates to what I have been discussing in the last two posts about policing.  What follows is a partial summary of what the federal court system has done to legalize a system of controls that essentially increase the likelihood that more black men will be incarcerated (or even killed) at the hands of our justice system.  This is not a fantasy.

“The racial dimension of incarceration is its most striking feature.  No other country in the world imprisons so many of its racial or ethnic minorities.  The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.  It is estimated that three out of four young black men (in Washington DC’s poorest neighborhoods) can expect to serve time in prison.  Similar rates of incarceration can be found in black communities across America.  These stark racial disparities cannot be explained by rates of drug crime.  Studies shows that people of all colors use and sell drugs at remarkably similar rates.  Surveys have found that whites, particularly white youth, are more likely to engage in drug crime than people of color.  That is not what one would guess when entering our nation’s prisons and jails which are overflowing with black and brown drug offenders, admitted to prison on drug charges at rates twenty to fifty times greater than those of white men.”

Further, even though crime rates continue to decline in our time, and have dipped below the international norm, the US incarceration rate has quadrupled.  The US now boasts an incarceration rate that is six to ten times greater than that of other industrialized nations – a development directly traceable to the War on Drugs.  “The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history.”

One cannot help but ask what is causing this horrendous turnabout when just a few decades ago, academics and criminologists were calling for a moratorium on prison construction?  In 1972 there were fewer than 350,000 people in prisons and today there are more than 2 million, even as crime rates decline.  If current trends continue, one in three young African American men will end up under the control of the corrections system, including prisons, probation or parole.

Disturbingly, it is well-documented that the judicial system is behind much of this mass incarceration.  Decisions that have been made in our courts have exacerbated the racial underpinnings of the War on Drugs so that basic rights and protections are being denied our young men of color in ways that make this a preeminent civil rights issue and not just an issue of lingering racial bias showing up in a few people.  We are dealing here with institutional racism in its most pernicious form – the use of law and policy, standards and customs to create a system of racial control that is mostly invisible to the average citizen, but one that ensures the subordinate status of a group defined largely by race.
 
 Here’s how that happens: how legal rules and rulings can guarantee discriminatory results, or as Alexander describes it – how a colorblind criminal justice system achieves such racially discriminatory results.  She makes a very strong point that the Supreme Court, “when it came time to devise rules for the War on Drugs, adopted rules that would maximize – not minimize – the amount of racial discrimination that would likely occur.”

She describes the process as having two stages; I’m going to describe it in four phases:

1)    The Round-up: stop, search, arrest.  In their decision in Whren vs. United States,  “the [Supreme] Court held that police officers are free to use minor traffic violations as an excuse to stop motorists for drug investigation, even when there is no evidence whatsoever that the motorist has engaged in drug crime.”  So long as a minor traffic violation can actually be identified – such as failing to signal, exceeding the speed limit by a mile or two an hour, tracking improperly between the lines, or having a non-working light – police are free to stop motorists and then go fishing for drugs.  That kind of police conduct, said the Court, does not violate the 4th Amendment ban on “unreasonable searches and seizures.”

The petitioners argued that granting police such broad discretion to investigate virtually anyone for drug crimes, “created a high risk that police would exercise this discretion in a racially discriminatory manner.”  They called for the Court to prohibit police from stopping motorists unless the police had reason to believe the motorist was committing or had committed an actual drug crime.  The Court not only rejected that argument, but went a step further and ruled that claims of racial bias could not be brought under the 4th Amendment.

The Court effectively barred any victim of race discrimination from even alleging a claim of racial bias because whether or not police discriminate on basis of race when making these stops is irrelevant to whether their conduct was reasonable under the 4th Amendment.  The Court left one bread crumb for the petitioner and said that victims of race discrimination could still bring a claim under the 14th Amendment which guarantees “equal treatment under the laws.”  Unfortunately, the Court has also made it “virtually impossible to challenge racial bias in the criminal justice system under the 14th Amendment, and has barred litigation of such claims under federal civil rights laws as well.”

Because "stop and frisk" has become so well known to New Yorkers especially, I have chosen not to go into detail on this issue.  But it needs to be said that such stops are as discriminatory as those for traffic violations, and perhaps more so.  Consider this one thought:  why do the police constantly patrol low-income, inner city areas, while no such activity exists in the mainly white suburbs of this country?  The usual retort is that such city areas are “high crime areas”  which simply ignores an equivalent amount of drug crime in the suburbs, and that most crack users are white.  "Stop and frisk" in high crime areas is simply equivalent to targeted harassment and arrest of black and brown men, based on racial profiling and stereotyping, all of which has been underwritten and supported by judicial decisions such as Armstrong v. United States.  Read the book.

2)    Prosecution and plea bargaining.  Prosecutors have more power than just about anyone in the justice system.  Few rules constrain the exercise of their prosecutorial discretion.  They can dismiss a case for any reason; they are free to file more charges against a defendant than can realistically be proven; they can offer just about anything as a plea bargain.  They can even transfer drug defendants to the federal system where penalties are much more severe, or transfer juvenile offenders to an adult court from which they can be sent to an adult prison.  In fact, there is no manual to follow, and their decisions are totally discretionary and virtually unreviewable.  And, the Supreme Court has little interest in assuring that prosecutors perform this extraordinary discretion in a way that is fair and nondiscriminatory.

Did you have any idea that "nearly all criminal cases are resolved through plea bargaining?"  Essentially a guilty plea is elicited from the defendant in exchange for some form of leniency by the prosecutor.  "Never before in our history...have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe."  Choosing "only" three years in prison as compared to going to trial and maybe getting five, ten, or twenty years - even life imprisonment - does not leave the defendant much choice.  The prosecutor's ability to "pump up" the volume of charges also comes into play here.  "Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause, but which they seriously doubt they could ever win in court."
 
But prosecutors carry this a step further.  As part of the plea bargain, they can also obtain testimony for related cases, encouraging people to snitch on others in return for leniency, often by presenting false testimony.  "In fact, under the federal sentencing guidelines, providing 'substantial assistance' is often the only way defendants can hope to obtain a sentence below the mandatory minimum."  And guess what?  "The U.S. Sentencing Commission itself has noted that the 'value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip..."

The critical point," according to Alexander, "is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence.  The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch.  Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time.  And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences.  This is the way the roundup works, and it works this way in virtually every major city in the United States."    

3)    Sentencing.  The concept of mandatory sentencing for certain crimes is probably pretty well known, but did you know that harsh mandatory minimum sentences have been consistently upheld by the U.S. Supreme Court?  "In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.  Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine."  The Court said that the sentences imposed were 'reasonably proportionate' to the offenses committed, but were not 'cruel and unusual' in violation of the 8th Amendment.  Interesting fact:  prior to the Drug Reform Act of 1986, the longest sentence ever imposed for possession of a drug was one year!  "A life sentence for a first-time drug offense is unheard of in the rest of the developed world."

Perhaps the most famous Supreme Court case upholding mandatory minimum sentences is Lockyer v. Andrade.  In that case, the Court rejected constitutional challenges to sentences of 25 years without parole in the case of some rather minor examples of stealing.  Since this decision was pursuant to the three-strike law in California, the Court in essence gave other states the green light to pass such laws.  These mandatory sentencing laws are often justified as necessary to keep "violent criminals" off the streets, but those penalties are imposed most often against those who are found guilty of nonviolent crimes, often involving drug-related crimes. What we have here is an absurdity.  Even Justice Souter in dissenting to the majority opinion in Andrade retorted, "If Andrade's sentence [for stealing videotapes] is not grossly disproportionate, the principle has no meaning."
  
The point is: this is a prime example of how a constitutional principle can become meaningless for protecting a minority from the tyranny of a majority.  Most of those subject to harsh mandatory sentences in the federal system are drug offenders - low-level dealers, not 'king-pins.'  And, once again, the largest numbers of offenders corralled into the justice system are black men.  Ergo: the Court established one more institutionalized way to control and divest black and brown men of any right to redress of their biased treatment.
 
According to Alexander, when media hysteria was at fever pitch regarding black drug crime in 1987, and evening news was saturated with images of black criminals shackled in courtrooms, the Supreme Court went all out in McCleskey v. Kemp to declare that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the 14th Amendment “in the absence of clear evidence of conscious, discriminatory intent.” It became clear that the Supreme Court would tolerate racial bias in the criminal justice system as a whole, so long as no one admitted it.  The petitioner used the well-known report of great disparity in the execution of black defendants who killed white victims as distinguished from whites who killed black persons.  According to Alexander, the statistical evidence of discrimination in the Baldus Report was the strongest ever presented to a court regarding race and criminal sentencing.  By a one-vote margin, the Court rejected McCleskey’s claims under the 14th Amendment, claiming that he had not proven that the prosecutor in his case had sought the death penalty because of race or that the jury had imposed the death sentence for racial reasons, and that statistical evidence of “patterns” did not prove unequal treatment under the law.

Her conclusion: “In erecting this high standard, the Court knew full well that the standard could not be met absent an admission from a prosecutor or judge that they acted because of racial bias.”  Moreover, the evidence of deliberate bias in an individual case would almost always be unavailable or inadmissible due to procedural rules that shield jurors and prosecutors from such scrutiny.  Of little concern to them, the Court “closed the Courthouse door to claims of racial bias in sentencing.”  At the end of the majority opinion, the Court stated that “discretion” plays a necessary role in the implementation of the justice system, and that “discrimination is an inevitable by-product of discretion.”  Apparently, the conclusion of the Court is that racial discrimination must simply be tolerated as a necessary part of the entire judicial system!

Following McCleskey, the claim that disparity in sentencing for those found guilty of using or selling powdered cocaine versus crack cocaine was racially based got nowhere, and lower courts consistently rejected claims of racial discrimination in the absence of explicit evidence of such.  Few challenges to sentencing schemes, patterns or results have been brought since McCleskey because it is a futile exercise.  In 1995, some brave lawyers challenged Georgia’s two strikes and you’re out sentencing scheme – 98.4% of those serving life sentences under this provision were black.  The Georgia Supreme Court ruled that a case of discrimination had been made and directed prosecutors to offer a race neutral explanation for the results.  Instead, the Georgia Attorney General filed a petition for rehearing the case, which was also signed by all the district attorneys in the state who happened to be white.  Thirteen days later, the Georgia Supreme Court reversed itself basing its decision on McCleskey v. Kemp.

To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States.”
  
4)    Release: restrictions & prohibitions.  "Once a person is labeled a 'felon', he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship are off-limits.  It does not matter whether you have spent time in prison; your second-class citizenship begins the moment you are branded a felon."  Let us count the ways:
  1. barred from public housing by law
  2. discriminated against by private landlords
  3. ineligible for food stamps
  4. forced to "check the box" indicating a felony conviction for nearly any job application
  5. denied licenses for a broad range of professions
  6. locked out of the mainstream society and economy on a permanent basis
  7. regular surveillance and monitoring by the police
  8. governed by additional rules on travel and behavior (such as association with other felons)
  9. paying fines and meeting with probation (or parole) officers - miss a meeting and one might be arrested
  10. failing to cope well with one's exile status
Unable to cope with the stigma of "felon" and their permanent pariah status, most end up back in prison.  According to Alexander: "Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep ex-offenders marginalized from mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste."
 

Throughout our history, the Supreme Court has been depended upon to protect and defend the rights and freedoms of the American people.  At times, they have succeeded brilliantly.  But, at other times, they have been the instigators and the proponents of interpretations of our Constitution that have not only bordered on the absurd, but have undermined certain cherished concepts and foundational principles of democracy and justice to an extent that has further weakened our fragile representative democracy.
 
As Michelle Alexander has shown, and as I have tried to summarize and illuminate, the Supreme Court decisions since the early 1980's have helped to reinforce a structure of bias and profound discrimination against persons of color (without ever addressing race as an issue), such that our system of justice has become a bastion of social control over African Americans, in particular.  Just as the Court did with Citizens United, turning freedom of speech into acceptable political bribery, so they have turned amendments to protect rights and freedoms - such as search & seizure, cruel & unusual punishment, and equal protection under the law - into vehicles for outright discrimination against and control of, a minority population. 

Virtually all constitutionally protected civil rights have been undermined by the so-called War on Drugs.  For example, it was not too long ago that the police could not stop and search someone without a warrant unless there was 'probable cause' to believe that the individual was engaged in some criminal activity - a basic 4th Amendment principle.  That is no longer true in our society due to decisions of the Supreme Court beginning with a modification in Terry v. Ohio in 1968 known as the 'stop and frisk' rule.  Justice Douglas in his dissent on Terry warned that "granting police greater power than a magistrate [judge] is to take a long step down the totalitarian path."  This is what communities populated mainly by people of color put up with every day: an abrogation of their rights and freedoms and a growing control over their opportunities and social welfare - all with a legal base to support such actions.

We have been remiss in believing that courts are somehow sacrosanct.  They are not.  And they deserve now a retribution that has long been lacking on the American scene: they deserve our contempt for allowing institutional racism to flourish in our justice system.  The dirty little secrets of their decisions need to be displayed for all to see for they have actually granted or approved:
  • a license to discriminate to police,
  • a license to deceive and manipulate offenders for prosecutors,
  • the right to reject applicants to employers and housing  authorities. 
  • mandatory drug testing for employees and students;
  • random searches and sweeps of public schools and students, 
  • police obtaining search warrants based on anonymous tips;
  • expanded government wiretapping authority,
  • the use of paid unidentified informants by police and prosecutors,
  • the use of helicopter surveillance of homes without a warrant,
  • the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity.
 As Michelle Alexander says: "These new legal rules have ensured that anyone, virtually anywhere, for any reason, can become a target of drug-law enforcement activity."  And that is exactly what Justice Douglas was talking about when he used the word 'totalitarian.'  Our revolutionary forefathers, mothers, brothers and sisters knew exactly what that word meant as British soldiers daily committed such atrocities against their persons and their property.  That is why they were careful to restrict armed forces of all kinds from invasion of our lives and homes, spelled out in our Constitution.
 
It is past time for progressives to demand that our justice system - including police forces, prosecutor's offices, courts, prisons, probation and parole offices, and all its concomitant policies and actions -- be reviewed, disciplined, reformed and overseen from here on out.  Because we have neglected the flaws of this system for far too long, the system has not only turned its back on us, but it has created a totalitarian monster that is already devouring men of color by mass incarceration, and that can devour any of us at any time, both collectively and individually.   Please read the book, because no one can do it justice in a partial summary!
 

5/11/2015

Discuss-Advise-Review-Change?

Last week, on May 4, I introduced the concept of re-instituting Civilian (or Citizen) Review Boards as an important initial step toward making policing responsible to the community that is being served and protected.

It is important to insert a bit of history here in order to understand the development of the CRB movement. The ACLU website summarizes that development quite well:
“Civilian review of police activity was first proposed in the 1950s because of widespread dissatisfaction with the internal disciplinary procedures of police departments. Many citizens didn't believe that police officials took their complaints seriously. They suspected officials of investigating allegations of abuse superficially at best, and of covering up misconduct. The theory underlying the concept of civilian review is that civilian investigations of citizen complaints are more independent because they are conducted by people who are not sworn officers. By the end of 1997, more than 75 percent of the nation's largest cities (more than 80 cities across the country) had civilian review systems. Civilian review advocates in every city have had to overcome substantial resistance from local police departments. Strong community advocacy is necessary to overcome resistance, even after civilian review is established.
Civilian review systems create a lot a confusion because they vary tremendously. Some are more "civilian" than others. Some are not boards but municipal agencies headed by an executive director (who has been appointed by, and is accountable to, the mayor). Some act only as appeal boards to look into complaints of unfair internal reports already completed.
"Civilian review establishes the principle of police accountability. Strong evidence exists to show that a complaint review system encourages citizens to act on their grievances. Even a weak civilian review process is far better than none at all, " according to the ACLU, but on the police side, there is almost unanimous disagreement with that statement.

One could say that overall, police have alluded to CRB s as witch hunts of benefit to no one. In Hartford , Connecticut in March of 1980, where a police officer shot and killed an innocent man, the Common Council was pushed to endorse the concept of a permanent civilian review board. The Hartford Institute of Criminal and Social Justice produced a report in response to the council's resolution in order to help determine what the council should do next. The Institute conducted interviews and studies in seven cities and from others on a more limited basis to determine what people thought and to find what types worked and what the successes were. The Report, titled "Civilian Review of the Police -- the Experiences of American Cities" was conducted in March 1980, and has been somewhat influential ever since. The seven cities where detailed information was collected, included: Chicago, Detroit, Kansas City, Memphis, New York, Oakland, Philadelphia, Baltimore, Miami, Minneapolis, Rochester, Washington and York (PA). Their various approaches, and those of other cities, are listed below:
1. Chicago, Illinois: Office of Professional Standards; physically within the police department but separate from the Internal Affairs Division; operated by three civilian administrators appointed by the superintendent of police; one black, one white, one Hispanic—all lawyers. Started in 1974.

2. Detroit, Michigan: Board of Police Commissioners; administered by the Office of the Chief Investigator; composed of five civilians appointed by the mayor with the approval of the city council; minority representation, including one woman. Started in 1974.

3. Kansas City, Missouri: Office of Citizen Complaints; five-person civilian staff appointed by the Board of Police Commissioners. Started in 1970.

4. Memphis, Tennessee: Police Advisory Commission; composed of no more than eighteen and no less than ten civilian members; appointed annually by the director of police and the mayor from a list of candidates provided by the commission; commission members represented both extremes, for and against police. Started in 1977.

5. New York City, New York: Civilian Complaint Review Board; located within the police department with seven members: three police appointed by the police commissioner and four community representatives assigned by the mayor; ethnic mixture. 1953 forward— police members only; after 1966— addition of civilians.

6. Oakland, California: Citizens Complaint Board; mayor appoints seven citizens to one-year terms subject to approval by the city council; cross section of the community. Started in 1980.

7. Philadelphia, Pennsylvania: Police Advisory Board; five, then eight civilian members appointed by the mayor with no fixed length of term; cross section of the community with two retired police officers to add balance. 1958-1969.

8. Baltimore, Maryland: Complaint Evaluation Board; unstated membership, all were government employees or elected officials with one active police officer as member. Started around 1965.

9. Miami, Florida: Office of Professional Compliance; four members with a director appointed by the city manager and the police chief. Started in 1980.

10. Minneapolis, Minnesota: Minneapolis Civil Rights Commission; unstated membership staffed by the city council; short lived due in part to the commission subpoenaing the president of the city council. 1965.

11. Rochester, New York: Civilian Review Board; nine members appointed by the city manager; disbanded when no longer funded. 1963-1971.

12. Washington, D.C.: Civilian Review Board; seven members including two attorneys, how appointed not stated. 1948-1965; in 1965 completely restructured, then oddly disbanded the same year; re-purposed in 1980.

13. York, Pennsylvania: Police Review Board; city council appointed five York residents to act as a board and also to advise the mayor and other officials about police ”oppressiveness.” 1960-1962

 The various boards not only differed in type, but also in the amount of authority each possessed. Some had investigatory power and could issue subpoenas; others were advisory only. In addition, it appeared that some boards were adversarial to a large degree while others agreed in nearly every instance with a police review of circumstances and procedures. The writer of an article on CRB's at www.what-when-how.com lists for us the Pros and Cons found in regard to CRB's. Here is my summary of that list:
PRO's:

CRB's appear to have some positive influences on the public:
+creating more effective public relations
+acting as a safety valve for both police and citizens
+increasing respect for the law when reviews are well handled
+increasing public confidence in police departments when police demonstrate agreement to undergo review

CRB's appear to have some positive affect on perception of the police:
+an exonerated officer less likely to be thought of as having escaped justice
+often aid in dispelling the belief that all police are brutal and arbitrary
+police appear less isolated and more accountable

CRB's in general:+cannot handle every complaint leveled at police
+can deter misconduct before it happens because police don't like public review
+can act as conduit for some form of settlement even if complaint does not merit court action

CON's:
Most of the adverse reactions have to do with harassing or undermining the police
-destroy morale
-anyone can harass police to get them in trouble
-police job security hangs in the balance
-police are less efficient knowing they can be called in by review board
-police know their business best and CRB's are redundant to a police review


Many of the con's fall into category of flaws in the CRB itself or its procedures
-police powers cannot be delegated, therefore CRB's are unlawful
-fail to provide for procedural safeguards such as rules of evidence, protection against double jeopardy
-entertain minor to frivolous complaints
-very existence aids in polarizing police and citizens
-emotional catharsis takes place more than dispassionate inquiry

Miscellaneous
-internal review places responsibility for handling misconduct with those who best know how to cure it
-only the police know their business, and every profession should have the right to internal review and self-discipline
-other adequate means are available to citizens with legitimate complaints, such as the courts
-history of CRB's is lackluster
-civilians are generally less strict in reviewing police misconduct

 The author of this piece, in regard to civilians being less strict about officer misconduct, raises a seminal question: why then are review boards necessary, especially if police are harder on themselves than are citizens? My own answer is not complicated: internal review and discipline are not generally open processes with full disclosure. In fact, as with the AMA, it is too often a ready mechanism for excuses, blaming the victim, controlled disclosure, cover up and diversion than a full-blown unbiased inquiry with a resulting plan for discipline and improvement. That, my friends, is the nature of the beast: minimize damage to the profession, protect one's own members, and avoid repercussions.

In my opinion , the existence of a CRB should be formulated in keeping with some basic principles:
1) Positive Community relations must be a primary goal
--A review board by itself is not sufficient
--Police review is too narrow a concept; the purpose must be broadened
2) There must be controls in place to assure thoroughness and fairness
--one mechanism might be an impartial ombudsman, acting both as citizen advocate and government official who would oversee all complaints and all investigations of alleged misconduct
--another could be staff on the CRB who understand police policies and procedures
--a third might be the requirement of a diversified membership representing the community-at-large
--how members are selected is also an important contributing factor to fairness
3) On-going Citizen concern and involvement is paramount
--promoting the integrity of the Board and of the police is important in order to enhance community confidence in both
4) Cooperation and respect must be the order of the day
--mechanisms for cooperation must be found, such as the issuance of joint recommendations
5) Training and re-training must be a prime target for improvement
--training for Board members and for police members must be on-going, and some mutual training would be ideal as would involvement in training of each other
So let us begin our quest for citizen involvement from a different angle than the simple review of police misconduct. Let us begin with defining the larger problem of mutual relations of public servants to their community (constituency) and of citizens to their community, institutions and leaders.

First, we turn back to that earlier Blog post I mentioned, when on August 17, 2014, I discussed the policing principles of Sir Robert Peel, remembered today as the "Founder of Modern Policing." Several of his nine foundational principles speak directly to the matter of community support, approval, and involvement in policing., so here are all nine in brief :

#1: The basic mission for which police exist is to prevent crime and disorder.
#2: The ability of the police to perform their duties is dependent upon public approval of police actions.
#3: Police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.
#4: The degree of cooperation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
#5: Police seek and preserve public favor, not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.
#6: Police use physical force to the extent necessary to secure observance of the law or to restore order when the exercise of persuasion, advice and warning is found to be insufficient.
#7: Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
#8: Police should always direct their action strictly toward their functions and never appear to usurp the powers of the judiciary.
#9: The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with them.

 
Perhaps some police departments still display these principles on walls but adherence to them has seemed to fade into obscurity. Yet the wisdom of the past is sometimes a clarion call to reality in the present. Perhaps it is not too far-fetched to promote discussion of the mission of police. Maybe it could start in police training. Perhaps chiefs could begin the discussion with other brass. Perhaps an internal discussion, at the invitation of the Mayor and Common Council could be extended to citizens of the community in neighborhood forums. It would take some skillful organization to do this, but its time has come, and is an essential step that must be done lest more cities become a Ferguson or a Baltimore.

Perhaps another step toward community approval and involvement in policing could be achieved by a change of attitude accompanied by a change in appearance and tactics. Are the police at war with their communities? That is the message given by riot gear, military armor and vehicles, by tear gas and smoke bombs, by Tasers and clubs. Are the police separate from the communities in which they serve, hidden in squad cars, rarely out among the people unless it is to give orders and directions, stop and frisk suspects, or pull over and search "suspicious" vehicles and their drivers? How do we change such images and symbolic messages? We do it first by talking with citizens and building rapport. But more especially, our police departments must choose uniforms, equipment and actions that demonstrate a new message. It is a principle of human behavior that you cannot influence another person if the symbols and body movements you display are contradictory to the words you speak. Yes, actions, style of dress, equipment and behaviors do speak louder than words!

The very real core of the "Peelian Principles" is a dedication to the proposition that the approval, respect and cooperation of the citizenry are key to successful and effective policing. Have we simply forgotten this principle, or have we allowed it to get buried beneath false premises, false stereotypes and false rhetoric?

Is there a certain element (small though it may be) of cops with bad attitudes and distorted viewpoints who regard all African-Americans (and possibly Hispanic Americans) as "criminals," "thugs" or "animals?" Have those attitudes of a small minority of police against a small cohort of minorities infected others within our police departments so that even the "good cops" are not quite sure about how to view racial minorities? Is there an attitude prevalent among our top brass of police departments that the fewer racial minorities recruited into the "corps" the better? Is there a flagrant distortion among even our best cops that racial minorities are somehow inferior to other people and don't deserve the same consideration given to white businessmen, for example? Probably; and some of it is caused by the fact that young inexperienced officers are often given their first assignments in high crime areas in minority neighborhoods, where joblessness, high crime and a criminal element make everything they see and confront seem to be the norm for everyone of color. But because of their lack of involvement with other community members, and their lack of training in generational and institutional poverty, and the lack of community representatives in their training courses, they are quickly sold on stereotypical characteristics that seem to confirm the need for a certain adversarial and belligerent attitude.

On the other hand, is it any different on the community side? Not really. Trust is low; affection is rare; relationships are almost non-existent, and "white" is often hated. Cops are still "pigs" to many, and hatred of them is not an unknown quality. But here again, there is a misconception and misperception, for in the midst of all of this there is also an attitude of belief that cops aren't all as bad as they are made out to be. Street slang and street talk and street attitudes sometimes infect our Black communities in the same way bad cops can infect their brothers and sisters in uniform. There is still a large cohort of Blacks and Hispanics who try to better their communities; who abhor violence and crime; who want more education, who want to follow Jesus' Golden Rule of Love Thy Neighbor. There is within all of these minority communities, the soul of a people who care about others, who care about family, who care about their community and their churches, and their young people. There are elderly folk who carry with them traditions of the past that are values we all have in common. There are emerging leaders who want to give back to their people and their communities through service professions and by joining the armed forces of this country. There are many young people who are eager to be contributors to their community and not takers from it.

So we have two communities that share similar malignant attitudes, at the same time that a large portion share the same values of goodness, kindness and justice. The problem is, with all the suspicion of each other, how do we get them together? How do we bring together two communities that need each other's take on goodness and evil, so that cooperation, support of each other, and mutual goals are the outcomes. I don't know for sure. All I know is that we have to talk, we have to meet and we have to interact without all the stereotypes and false assumptions getting in the way. It's a tall order, and I have just one small suggestion.

We probably ought to have continuing public forums, but we need also to promote small group meetings in homes. Perhaps the formation of neighborhood advisory committees, made up of police meeting with people from minority neighborhoods, are more desirable. These advisory groups need to be recognized and organized by the leaders from both communities, and they should meet on a regular schedule. The advice they give should be mutually decided and be able to be presented to the Mayor and the City Council. Those governmental entities should be responsible for responding to each and every recommendation that comes forward, and should also ask often for more advice and more explanation. This is a beginning step toward cooperation and respect, but is not an end in itself. Such groups have a tendency to evolve if there is real interaction, and there will be for some but not necessarily for all. Again, these groups might need trained facilitators at the beginning stages, but should move as quickly as possible to their own agenda and leadership.

What is important is that these groups must have support from city leaders. They can't just exist in a vacuum. They must have their best recommendations on community matters, especially community policing, recognized, publicized and put into practice as quickly as possible. My opinion is that these advisory groups need to precede any type of review board so that CRBs are more natural outgrowths of discussions between police and community members, as they ought to be. Perhaps a city-wide advisory group would be a natural outgrowth of these neighborhood groups and it could be the responsibility of the city-wide board to handle complaints of police misbehavior something like they did in Memphis, TN. Adding an office of ombudsman would build-in a safeguard that might assure a balanced and just approach to such complaints.

Let it be said that there is no perfect way to do this: to have civilian review boards and police departments that seek change and better training when those are necessities. But that doesn't mean we shouldn't try to bring back these elements of policing that emphasize police as part of the community and the community as part of the police. We simply cannot continue along the path we have been on. It is too dangerous, too deadly, and too destructive. It is time to change the symbols and the attitudes that are leading us astray, and we do that by finding ways to work together, as I have suggested, rather than by adversarial attacks upon each other.


 
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5/04/2015

Social Violence Begets Reactive Violence

A short Timeline of Tragedy tells what has been happening in our cities just in the past ten months:
July 17, 2014 -- African American father of six, Eric Garner, 43, dies after being placed in a choke hold by police while being arrested for selling cigarettes illegally in NYC
August 9, 2014 -- White police officer kills unarmed black teenager and aspiring college student, Michael Brown; decision made not to indict officer in Ferguson, MO
August 11, 2014 --  Ezell Ford, an unarmed black man who was mentally disabled according to family, is killed by Los Angeles police as he walked down the street; autopsy showed shot three times, once in the back
August 2014 -- police responding to a 911 call shot and killed a black man, John Crawford, in a Wal-Mart store in Ohio as he was carrying a toy gun sold there
November 20, 2014 -- Unarmed black man, Akai Gurley, father of a young daughter, shot by an Asian American officer in a dimly lit staircase in a Brooklyn apartment block
November 22, 2014 -- Tamir Rice, 12-year-old black child, shot while carrying a replica gun just seconds after police confronted him in a public park in Cleveland, OH
Jan. 28, 2015 – a Black man named Floyd Dent was bloodied by repeated punches to the head during a traffic stop, which came to light in March when a TV station obtained the police dash cam video. --Inkster, MI
March 6, 2015   -- In Madison, Wisconsin, 19-year-old Tony Terrell Robinson was shot and killed by a police officer. Robinson was unarmed at the time.
March 9, 2015 -- In the state of Georgia, a white policeman kills an unarmed black man, Anthony Hill, 27, who appeared to suffer from mental problems according to the police who said he was naked when he jumped on an officer
April 2, 2015 -- insurance executive Robert Bates, 73, is charged with second-degree manslaughter in the death of a black man, Eric Harris, who was shot after running from officers trying to escape being tasered.
April 7, 2015 -- white police officer is charged after surfacing of a video that shows him shooting 50-year-old black man, Walter Scott, in city of North Charleston, SC.
April 12, 2015 – a black man dies while in police custody and on way to jail in the back of a police van.  An autopsy showed that Freddie Gray suffered "a significant spinal injury that led to his death," and the State Attorney General on May 1 declared that 6 officers had been arrested on various charges including misconduct, manslaughter and second degree murder. (Baltimore)


The next two excerpts represent two widely divergent reactions to all of this.  They make clear, I think, what many people are dwelling on in this debate: the merits of the police versus the racial profiling of black and brown men.
1)    “Was (Tony) Robinson another “gentle giant”? Maybe, but he pled guilty to armed robbery just three months ago. Here’s the thing: if you assault a police officer, he probably will shoot you. That’s what happened to Michael Brown, too. Some people seem to be under the misapprehension that if you are unarmed, the police officer is obliged to engage you in a fistfight (trusting that you don’t have a gun, knife or other weapon) and see how it turns out. No. He, like any other citizen, is entitled to shoot you if he reasonably apprehends a danger of grave physical harm, and you can be pretty well assured that he will do so. Based on the number of these events recently, is there a “systematic targeting of young black males”? It looks more like there is a systematic targeting of police officers.”


2)    “The number of reported incidents of police brutality and excessive force toward Black men could very easily lead one to believe that the Black man may be American law enforcement’s worst nightmare. None are stranger to the reality of racial profiling in the police force. Profiling continually affects mostly Hispanic and Black males as it’s assumed that Blacks and Hispanics are more likely to be the perpetrators of crime than their White and Asian counterparts. With such change that has taken place since the civil rights movement, reported incidents of police brutality are at an all-time high among black males.  According to the National Safety Council, statistics show that black males are 21 times more likely to be shot, maimed, or killed at the hands of police than any other racial group.
"Going back to the Rodney King incident in the 90’s, police brutality against black males in America has been an alarming problem met with little opposition. In all of these tragic incidents, the police have generally been white and the murder victims were all black males. The overly aggressive acts of some of the officers verged on vigilantism, punishing those they felt were guilty. Although some officers might show some remorse after getting caught, their sentences, or lack thereof, rarely fit the crime that they had committed. Many of the incidents of young black male-slaying were completely avoidable and destroyed lives; however the deaths continue to be justified.  (By Tyler Cole, Guardian.com)


The Baltimore riots of Monday, April 27, 2015 are being sliced, diced and vilified by everyone who can offer a few thoughts and words. Let us be clear here:  violence in the form of looting and destruction are against the law and simply cannot be overlooked in a society that depends upon law enforcement in order for the rule of law not to be undermined and destroyed.  I don’t want simply to re-visit what everyone else has discussed, nor do I wish to discuss the details of each incident. I would rather address something that others basically overlook or minimize.  There is something of grave consequence that exists in abundance in this and other communities, but is largely ignored.


Social Violence.  We always seem to focus on only one form of violence once a racial riot occurs. We emphasize the looting, the destruction of property, the setting of fires, the throwing of objects, and the injuries that are visited upon the police, plus whatever bad behaviors we can discern. And that’s appropriate in terms of the effect lawlessness has on the peace and order of the overall community. It’s appropriate also in terms of the negative effect such behavior has upon the non-violent protests that are meant to demonstrate the need for dramatic change and reform.


But, my friends, that is a limited and simplistic view of violence, especially when it is used by certain parties to denigrate all the protests and all the issues and all the needs that exist in African-American and poverty-laden communities.


The violent social harm imposed by those with power (mostly white) on people of color is immense, and it undermines all who are working diligently to bring opportunity to the people who most need redress of their grievances and reversal of their circumstances.  Look carefully.


Another form of "Violence" is clearly defined in the dictionary as of equal stature with physical violence:  unjust or callous use of force or power, as in violating another’s rights, sensibilities, etc., and the harm done by this.” Here are some thoughts on acts of violence that get lost in the myopic view that it is limited to looting and property damage.

Violence is also:
·    stopping black people on the street for no probable cause other than that they are black;
·    stopping black or brown drivers for minor violations and searching their cars without a warrant
·    entering homes that are under suspicion for having people in them who are manufacturing or selling drugs without a probable cause or a warrant
·    harassment of brown or black people in department stores & malls as they shop
·    continuing a ‘War on Drugs” that is nothing more than an attack on (mostly) men of color who are then incarcerated for long terms in jails far beyond the sentences handed out to white men who have been charged with similar crimes
·    continuing punishment visited upon men of color who have served their required terms of sentence, but who cannot get jobs, vote or obtain a bank loan, or even rent in low-income housing without facing outrageous restrictions or outright rejection
·    police brutality that leads to injury or death of young black men like Freddie Gray of Baltimore and many others, perhaps even here in Utica (read 'From The Editor' on this in the Utica Phoenix for  January 2015 at http://uticaphoenix.net)
·    no large chain food stores in Black neighborhoods and inadequate transportation to where they do exist
·    banks that refuse to cash paychecks; who deduct fee payments from your check if they do cash it
·    being regarded by many as unworthy, unimportant, uneducated and unreliable, and being just plain ignored or invisible, as well as lazy and shiftless
·    being saddled with poor and failing schools, too many inadequate teachers and educational equipment, with inadequate civic services, health services, child care, museums and libraries, as well as lack of community centers, social services and adequate recreation facilities
·    lack of opportunity and funding to attend a 2-year or 4-year college or university
·    the flight of industry and retail jobs to the suburbs and out-of-reach; and the exclusion from union membership that denies a chance at union jobs and benefits
·    having to work two or three jobs just to get by
·    the scams, the over-charges, the higher prices for limited choices in food, clothing and other necessities
·    the rejections, the failed plans for programs and changes, the lack of ways to influence change and the co-opting of some black leaders; the absence of grants and influx of monies from government and private foundations to promote training, education, activities of good living and needed programs
·    waiting decades for help while continuing to suffer all the inadequacies, the lacks, the insults and the stereotypes that others use to continue their forms of violence


Looting, destruction, hurling missiles, setting fires, injuries and bad behavior exhibited by so-called "hoodlums" and "thugs" are not the only forms of violence worth condemnation.  Equally harmful violence comes in subtle forms from ordinary individuals and institutions that cause immense hurt and damage. The question becomes a pointed one: why are the forms of harmful social violence not chargeable in terms of being crimes?
The easy answer is that this is too difficult to prosecute, because the connection of perpetrators to the causing of harm to individuals is tenuous and difficult to prove. That may be true on the surface, but what if laws were crafted that would make those connections clear? Will we ever get to see prosecution of legislators, bank managers, food merchants, board of education leaders, real estate dealers as being liable for the violence and the harm they have perpetrated, and continue to do so, on African Americans? I defer to the lawyers.


Let us note finally that violence begets violence. It always amazes me how people continue to ignore that fact -- whether it applies to bullying, racial profiling and stereotyping, whipping children with objects that hurt and harm, glorifying guns, police harassment and brutality; threats and acts of war, and even something as common as disrespect of another human being – all these forms of violence carry within them the seeds for breeding more acts of reactive violence.


Yes, protestors who become violent should be contained and charged as appropriate, but when will authorities act to:
§    direct rows of police to contain the harmful actions of politicians who deny children the help of health care or day care or universal pre-school or nutritious food?
§    call out the National Guard to keep guard over the looting of poor people by rental companies and fast food companies and minimum wage employers, and by Wal-Mart?
§    set a permanent curfew on the War on Drugs and the use of the “felony” label to discriminate against brown and black young men?
§    call out the armored vehicles and the SWAT teams and the riot-geared police to place all of them between Right-wing politicians (with their plans to destroy Social Security, Medicare and Medicaid) and the millions of Senior Citizens (and folks with disabilities) who count on  those programs as a needed foundation for their retirement and their lives?
§    have the white power structure stand up and condemn the use of labels and disguised epithets that denigrate an entire people?
§    motivate the police to turn out in droves to rebuild schools (and residences) allowed to deteriorate in our inner cities?


It’s well-past a reasonable time to identify this form of social and institutional violence in its many forms and to begin to treat it with the same disdain and disgust that we reserve for the reactive physical violence of people who have been burdened most all their lives, and in their history, with the harmful societal violence of rejection, discrimination and injustice, as well as the physical violence of bondage, lynching, chain gangs, whippings, beatings and shootings.


Ignoring problems, uncomfortable circumstances and people with particular and often special needs is rarely productive but we continue to do it. That is what we have chosen to do in this country and it is taking a toll that we can neither sustain nor endure.

We have chosen to ignore homelessness.
We have chosen to ignore those living in abject or generational poverty.
We have chosen to deny the fact that we have not provided adequately for the health and welfare of our poor, our children, our elderly or our veterans.
We continue to deny the devastating effects of institutional racism and the racial bigotry of many of our citizens.
We have ignored the long-term health care needs of the uninsured, the poor, the disabled and the sick elderly.
We have also chosen to ignore the plight of many Native Americans who live in abject poverty because gambling casinos do not benefit them.
There is more we have chosen to ignore, like the burden of college loans, the thievery of financial institutions, the fact that we are, as a country, declining in our leadership and capability in many spheres one of which is public education, and another of which is the condition of our infrastructure.


Unfortunately, this list could go on, but let’s stop to consider one major fact that we continue to ignore or at least try to shove under the rug.


It is our denial of the fact that our justice system is flawed. I cannot deal here with all the implications of that statement, so let me concentrate on just one area: the fact that most of the police agencies in this country – some 19,000+ of them – are unsupervised and are authorities unto themselves. They conduct their own investigations into corruption, community complaints and officer misconduct.  They render the decisions on police brutality; and the only oversight they might be subject to is that of colleagues in the local Commissioner’s Office or the District Attorney’s Office who have a vested interest in protecting their own backsides by siding with the police whenever it is not voter incongruous.


It is my opinion that the most important thing to do, before we spend too much time and energy on cameras on all cops, is to advocate instead for a solid system of outside oversight and review of our police departments.  But, I wish to go a bit further in my own recommendations. I believe quite strongly that we need to establish or rejuvenate a Citizen Review mechanism in every police jurisdiction. This would be an initial step, not only toward police oversight and review, but toward community policing. To make police departments subject to CITIZEN review puts them into a fundamental posture that has been sorely lacking. It makes them responsible to the community in which they serve and protect (something I wrote about in my post on this Blog dated 8/17/2014).


“Most major cities have some measure of civilian oversight in place, but in many areas no such external civilian control exists. It is apparent, however, that civilian review boards are critical to the success of external controls over police misconduct. Civilian review boards provide a means of maintaining internal regulation of police practices and evaluating a police officer’s performance. Regardless of whether a civilian’s complaint is valid, a system of review for allegations of misconduct can affect the public’s perception of a police department’s efficiency and its reputation.” (USCCR.gov)


ACLU says that the “GOOD NEWS is the situation is not hopeless. Policing has seen much progress. Some reforms do work, and some types of abuse have been reduced. Today, among both police officials and rank and file officers, it is widely recognized that police brutality hinders good law enforcement.”


On that note – watch for MORE TO COME, such as a proposal to balance Citizen Review with a particular mechanism that is used to assure fairness and justice in other circumstances.  Stay tuned....