In 1968, in the wake of racism-sparked uprisings by African Americans and the government response in some 150 cities, the Johnson administration issued its 426-page Kerner Commission report, formally known as the National Advisory Commission on Civil Disorders. Two million copies were sold.
This week, outgoing Attorney General William Barr released the 332-page report of the President’s Commission on Law Enforcement and the Administration of Justice in the wake of police killings that have kindled unprecedented multiracial protests. The queue to buy copies is likely to be short. The chasm between the quality of analysis and conclusions in these two reports published a half-century apart is deep and wide. Indeed, the Los Angeles Times editorial board labeled the latest report “illegitimate and self-serving.”
The 11 members appointed to the Kerner Commission by President Lyndon Johnson in mid-summer 1967 while urban riots were still taking place in several U.S. cities included four elected members of Congress, two from each party, New York City Mayor John Lindsay, the police chief of Atlanta, two African Americans, representatives of labor and business, and broadcasting executive Katherine Peden, the sole woman. No young people, nobody who could by any stretch be considered radical. Johnson had proposed the commission in hopes that by the time a mild report was issued widespread racial unrest that had begun in 1965 would have faded away and he would be on his way to reelection.
The Kerner Commission proved to be more independent than LBJ had anticipated, producing a best-selling report that labeled the ongoing violence in the streets a product of African American frustration over suffering severe economic and social disadvantages compared to whites. That frustration was fueled, the commission stated, by deeply entrenched racism that had created chronic poverty and joblessness, bad schools and housing, a lack of access to good health care, and systematic police bias and brutality.
It concluded that the “nation is moving toward two societies, one black, one white—separate and unequal.” That would have been better stated as the “nation remains two societies, one black, one white—separate and unequal,” but it called out the underlying problem: “What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.”
To fix this, the commission recommended federal action to end discriminatory practices in employment, education, law enforcement, and the criminal justice system, while improving housing, job opportunities, and social services for Black people. Many of these recommendations were excellent and had long been needed, but the report missed the boat in key ways. Despite the starkly accurate language about racism, the analysis fell short when specifically addressing how Blacks were oppressed. The commission depicted the uprisings as spontaneous acting-out because of the rotten social conditions rather than as rebellions against broader injustice. It took a “both sides” approach by condemning both white supremacists and Black Power leaders for a “climate of violence” that led to riots, and failed to adequately address violence perpetrated by the state.
For instance, although policing was criticized in ways never before seen in a government report, most of the destructiveness and lawlessness of the riots came from the police. Cops and National Guardsmen were responsible for most of the deaths and injuries that occurred.
Johnson accepted the report, but in his remaining year in office did little to promote any of its recommendations, and Richard Nixon ignored them altogether when he stepped into the White House 11 months after the report was released. Instead, he launched a law-and-order campaign that called for arming police officers like soldiers and taking a tougher approach in “inner cities.”
The Trump commission is a different animal. The ratio of good to bad recommendations falls far short in comparison to the Kerner Commission’s. Its 18 members—three Black people, six women—all come from law enforcement. Even before its report appeared, the commission caught flak.
John Choi, the elected prosecutor for Ramsey County, Minnesota, which encompasses the city of St. Paul, wrote a letter to Barr in September saying he was quitting one of the 17 working groups he was part of because he was afraid the final report “will vilify local prosecutors who exercise their well settled prosecutorial discretion consistent with their community’s values and the interests of justice.” He complained that commissioners “needed to listen to those who have been negatively impacted by policing and the criminal justice system” adding that closing the divide between communities of color and police “was never the intended goal.” Instead, he wrote, “Rather than examine how decades of over-policing in communities of color have created that deficit of trust, the Commission was instead encouraged to study ‘underenforcement’ of criminal laws and ‘refusals by State and local prosecutors to enforce laws or prosecute categories of crimes’.”
The ACLU also took aim in a May 27 letter:
As the ACLU and coalition organizations have previously conveyed, we are extremely concerned that this body is little more than a sham commission formed only for the purposes of advancing a “Thin Blue Line”law and order agenda. Upon the Commission’s establishment, Attorney General William Barr said, “[a]t its core, this Commission is for law enforcement” and cited “a continued lack of trust and respect for law enforcement” as a Commission focal point. [...]
Attorney General William Barr said communities “have to start showing, more than they do, the respect and support that law enforcement deserves. And if communities don’t give that support and respect, they may find themselves without the police protection they need.”
This rhetoric from the Administration is consistent with DOJ’s refusal to investigate misconduct and systemic unconstitutional policing by departments. The Commission must suggest that the Administration and DOJ reverse course here and actively enforce federal laws providing for police oversight and accountability.
No surprise that this suggestion is something the commissioners did not follow through on.
Indeed, a scathing Los Angeles Times editorial published today notes that there are two ways to look at the report:
The first is to see it as the completely illegitimate, politically self-serving defense of retrograde policing practices that it is. It reflects the commission’s unbalanced membership (it consisted only of law enforcement officials), its lack of civil rights or racial justice perspectives, and its unlawful proceedings held with insufficient public notice or public input. The rogue panel’s work was so legally out of bounds that a federal judge ordered the final product to be emblazoned with a prominent disclaimer or withheld altogether. The mandated wording appears on the report’s inside front cover, and the court’s order is attached.
Working against a backdrop of the police killings of George Floyd, Breonna Taylor and others, the nationwide protests that followed and the accompanying discussions of anti-Black racism throughout society and in policing in particular, the 332-page report is stunning in its omission of any acknowledgment of racial disparities or indeed any but the most cursory mentions of race or racism. In the commission’s blinkered view, the increases in crime and disrespect for the law were caused by anti-police protests, apparently not by brutal police killings. [...]
The report reflects President Trump’s desire to burnish his law-and order credentials, support his allies in the Fraternal Order of Police and other traditional policing groups and one-up the Obama administration’s Commission on 21st-Century Policing, which angered the FOP with its calls for more responsible police practices, better oversight and more cognizance of racial disparities in arrests and uses of force. By flouting the law that requires balance and transparency in such commissions, Trump and Barr made certain that their report would ratify their positions on crime, police and public safety.
It’s not that there is nothing worthwhile to glean from the report. Activists and police reformers already agree on one key item in it: police are often tasked with jobs that social workers, mental health experts, and others who aren’t police should handle. But separating the gobs of chaff from the handful of kernels in the report is frankly not worth the time.
As the Leadership Conference on Civil and Human Rights, the Open Society Policy Center, and the Center for Policing Equity said in their joint statement Tuesday:
We urge the incoming Biden Administration to disavow and rescind the Commission and its report, which completely failed to consider the rights of the communities that law enforcement officers and agencies serve. Any law enforcement agency that attempts to rely on information in the report, which was developed through illegitimate means, risks further damage to its own legitimacy and credibility.
The issues plaguing policing in America are no secret. They have been studied extensively and do not require additional commissions. It is time for the nation to pivot to implementing comprehensive policies that will hold law enforcement accountable for misconduct, create new public safety systems that reduce the footprint of law enforcement officers in Black and Brown communities, and increase investments in other services and programs that will keep all communities safe.
Wise counsel.