In one form or another I've been writing, reading and talking about criminal justice and police reform for over 20 years. Recent events during the Obama Administration have made this a hotbed topic and as a result a package of solutions from Obama’s own 21st Century Policing Report much of which has found it’s way into 10 point platform put forward by CampaignZero.org as an agenda for Black Lives Matter.
There are a lot of excellent and important ideas included in both documents that need desperately to be pursued. In my last Sunday essay — Study shows that police killings may be more blue on black than black and white — I made a comment that actually was a bit of a criticism of what’s not contained among Campaign Zero agenda and managed to get a direct response from a member of the Campaign itself. He made many excellent points, but I still continue to believe that as far as many of us have come in our desire and commitment to reform our criminal justice system, we still have some very critical and important steps we need to consider that haven’t so far even been part of the discussion.
First the tweet I received.
Technically, what I had said was this.
Many of the reforms suggested to date by groups such as Black Lives Matter’s Campaign Zero have argued for greater representation among police to reflect the communities they serve. They have as of yet not given quite as much weight to the issue of severing the link between police and prosecutors that may sit at the heart of our inability to implement true police accountability, as noted by The Guardian.
Later I added the following for clarity.
[edit: Although as was pointed out to me by Sam Singyangwe of Campaign Zero, they definitely do address the issue of Independent Investigations]
Here is specifically what they say.
Lower the standard of proof for Department of Justice civil rights investigations of police officers
Allow federal prosecutors to successfully prosecute police officers for misconduct by passing legislation to eliminate the requirement that an officer must "willfully" deprive another's rights in order to violate Section 242.
Use federal funds to encourage independent investigations and prosecutions
Pass legislation such as the Police Training and Independent Review Act of 2015 or use of existing federal funds to encourage external, independent investigations and prosecution of police killings (see Action Items 2.2.2 and 2.2.3 of the President’s Task Force Report).
Establish a permanent Special Prosecutor's Office at the State level for cases of police violence
The Special Prosecutor's Office should be:
- required and authorized to prosecute all cases of where police kill or seriously injure a civilian, in-custody deaths and cases where a civilian alleges criminal misconduct against a police officer
- equipped with an office and resources to conduct thorough investigations
- required to have its Chief Prosecutor chosen from a list of candidates offered by community organizations
Require independent investigations of all cases where police kill or seriously injure civilians
The independent investigators should be:
- required and authorized to prosecute all cases of where police kill or seriously injure a civilian, in-custody deaths and cases where a civilian alleges criminal misconduct against a police officer
- required to investigate all cases where police kill chosen at random from a list of the largest ten agencies in the state
- required to report their findings to the public
My initial point wasn’t really to say that CampaignZero ignores this point, clearly they don’t, but to contrast the relative weight they point in this area of investigation independent of the police themselves versus the issue of trying to create more community involvement and oversight of police which they address here under Community Oversight and again here under Community Representation which includes the specific suggestion to...
Increase the number of police officers who reflect the communities they serve
Require police departments to develop and publicly report a strategy and timeline for achieving a representative proportion of police officers who are women and people of color through outreach, recruitment and changes to departmental practices
Again, this isn’t a bad idea but the point of last week’s essay was that even when you do include people directly from the local community they are often indoctrinated by the police culture just as much as other officers from elsewhere into the “us vs them” mentality that is not only at the core of extreme acts of violence against the public by some officers it’s also part of the reason we can’t expect other officers within that system who may personally witness violence to come forward and speak out. They just aren’t gonna do it because they have too much personally at stake.
In December of 2014, in a moment of admitted frustration I wrote an essay titled There simply are no “Good” cops anymore. The premise of that piece was that if there were “Good” cops in the sense that I meant it, we would be seeing those Good Officers arrest their fellow Officers in the street when they cross the line, get violent with a member of the public unnecessarily or kill them.
My point was that we don’t really see that, do we? If we can’t expect good cops to protect us from the bad cops, how exactly are those officers going to be handled, if ever?
In over 20 years I really hadn’t seen an officer would come forward of his own volition and talk about crimes committed by his fellow officers. The only examples I could think of at the time was former NYPD Officer Frank Serpico who ended up shot in the face when his backup left him hanging. [As portrayed in this scene by Al Pacino in 1973]
Besides Serpico who has there been? At the point I wrote that essay the only other person I could even think of was LAPD Officer Rafeal Perez who after he was caught stealing drugs from police custody and selling them with his girlfriend was caught and his revelations that began what become known as the Rampart Scandal back in the ‘90s.
Rafael Perez made a deal with prosecutors under which he pled guilty to cocaine theft and agreed to provide prosecutors with information about two "bad" shootings and three other Rampart CRASH officers involved in illegal activity. In exchange, Perez received a five-year prison sentence and immunity from further prosecution of misconduct short of murder.
Among his first revelations, Perez told investigators of how he and his partner Nino Durden had shot, framed, and testified against Javier Ovando, an unarmed gang member who was left paralyzed as a result of the incident. At the time of Perez's admission, Ovando was in jail, serving the 23 year sentence he had received for allegedly assaulting the two officers.
Unfortunately this guy isn’t really a great example because if he hadn’t been caught stealing drugs he would have never come forward. Some have even argued that he overstated the corruption just to take heat off himself. However, since I wrote my no “Good” cops article almost 2 years ago I have found one. Actually a couple.
First former Baltimore Detective Joe Crystal who was practically run off the force on a rail when he stepped forward to stand against his fellow officers for a brutal beating.
In 2011, Crystal witnessed two fellow cops beating down a drug suspect after the suspect, fleeing from the officers, kicked in the door of a home belonging to another officer's girlfriend.
For reporting the officers’ actions to the State’s Attorney’s Office, Crystal was labeled a "snitch" and a "rat cop." The threats and intimidation -- which included someone putting a dead rat on Crystal's windshield -- are outlined in a multimillion-dollar lawsuit that Crystal filed against Commissioner Anthony Batts and the BPD.
...
“You know that sickening feeling you get when someone is after you?” Crystal asked. “That’s how I felt every day.”
And then you have former Baltimore Police Sgt. MIchael A. Wood Jr. who has become somewhat of a celebrity for his frank and honest accounts of police brutality after he left the force following a shoulder injury. Here he is talking with Slate.
To an extent, I’m totally guilty. I should have done more. My excuse isn’t a good excuse, but it’s reality: You report that stuff, and you’re going to get fired. I mean, of course you’re going to get fired. Or they’re going to make your life miserable. I mean, look what happened to Joseph Crystal.
It all goes back to this whole us versus them thing. You suit up; you get out there; you’re with your brothers. You’re an occupying force. Your job is to fight crime, and these are the guys you do it with. So you just don’t see the abuse. It doesn’t even register, because those people are the enemy. They aren’t really even people. They’re just the enemy. This is the culture. It’s a s—– excuse. But it’s the reality.
…
I grew up in Bel Air[, Maryland]. I didn’t have exposure to inner cities. And when you work in policing, you’re inundated early on with the “us vs. them” mentality. It’s ingrained in you that this is a war, and if someone isn’t wearing a uniform, they’re the enemy. It just becomes part of who you are, of how you do your job. And when all you’re doing is responding to calls, you’re only seeing the people in these neighborhoods when there’s conflict. So you start to assume that conflict is all there is. Just bad people doing bad things.
This is what we’re up against. The “Us vs Them” mentality that gets pumped into rookie officers right from the start.
We know this, we’ve known it for quite some time because it’s even leached into our popular culture versions of policing. A friend of mine, Archie Kao, used to be one of the actors on Chicago PD, the spin-off from Chicago Fire. On Chicago PD the police are brutal and dirty, the lead character and Lieutenant in charge has formerly done jail time for corruption and has been returned to his position in order for Internal Affairs to use him to smoke out other bad guys, the tension between IA and the bad Lieutenant ultimately led to my friends character, the IT Officer for the unit, being killed as an IA informant at the end of season one. I haven’t watched another episode since. Donnie Wahlberg’s NYC Detective character on Blue Bloods regularly crosses legal and ethical lines to pursue his own, often brutal, brand of “Justice” as do many of the characters on CBS’ Hawaii Five-O reboot. Another new show Shades of Blue has Jennifer Lopez as an officer who is forced into becoming an FBI informant against her boss, who is brutal and corrupt, played by Ray Liotta. In nearly all these shows the cops loyalty to being a cop far outweighs their devotion either to the law or to the citizenry and officers who harp on the “technicalities” [aka the Constitution] like Danny Williams on Five-0 or the youngest Reagan brother Jaime who has a badge and law degree on Blue Bloods are treated as naive whiners until they too begin to be corrupted and are soon “going with the brutal flow” without complaint or comment. We’ve come a very, very long way since the days of Adam 12 and Dragnet, both of those shows allowed the LAPD public relations department to have script approval in order to put police in the most favorable light possible. We know and accept that some cops are dirty and violent and that other cops let them get away with it, what we don’t have is a consensus on exactly what to do about it.
If we’re going to have to depend on cell phone cameras by civilians to capture what has truly occurred, body cameras once the police decide to release the tapes to the public, or else on honest and principled officers like Joe Crystal to be willing to report on behalf of the public when police go too far — the independent investigations that CampaignZero advocates for are going to be far and few between compared to the thousands of cases of people every year who are killed by police, and even more rare for the average 500,000 claims per year of use of force by police against citizens. Most officers are going to be more like MIchael Wood when they’re on the force, they may see casual brutality, but they aren’t going to report it because that would mean they’d lose their job, as did police whistle-blower Christopher Dorner until he became a mass murderer after he was summarily fired for “lying” about his supervising officer kicking a hand-cuffed man in the head. Police Departments like LAPD have a history of cracking down on whistle-blowers.
How are we to expect that police departments that treat officers who come forward like this are ever going to be able to honestly and fairly investigate themselves?
If the treatment received by officers with integrity from Serpico to Crystal almost 40 years later is any example cop culture isn’t going to change anytime soon and occasional prosecutions even by a genuinely independent Special Prosecutor are never going to do what needs to be done to change police and prosecutors enough to move them in an entirely new and desperately needed direction.
There’s one thing that Mike Wood says in the above video that has stayed with me. It’s what he said about why when he was assigned to work in a more affluent white community and was pressured to get his citation and arrest numbers he was instead drive a few blocks away and issue his citations and arrest among the black neighborhood, not because he was a racist but because he knew that those poorer citizens have no one to stand up for them.
Slate: Who would you arrest here, for what? It seems like you need a reason...
MW: But you don’t. That’s the thing you’re not understanding. So what, they were in the street.
Slate: That’s enough?
MW: Yeah. It’s jaywalking. Ok, so if they throw a cigarette on the ground you can do it and people do those petty arrests. You see that. So Freddie Grey being arrested for a spring-loaded pocket knife — you can’t tell me that black people carry spring-assisted pocket knives at a greater proportion than white people do, or even Hispanics because they’re doing construction sites around here, that’s a ridiculous thing to say. Of course we all — I have a spring assisted pocket knife. Conveniently, legally there’s a statute for police, imagine that?
So when you look at the arrest records what are you going to see? That the people here carry spring assisted pocket knives at the same rate as people up there. We’re not focused on the crime of the spring assisted pocket knife we’re focused on the crime of being black. And poor.
Wood has explained in other interviews that one of the reasons he didn’t seek arrests in the affluent neighborhood is because if he busted some kid there “their dad might be a lawyer” or “they might have a friend whose a judge.” Essentially they have the resources, the funds and the access to push back against a bogus or weak arrest. Just the possibility that an officer might have to justify his actions with that attorney or that judge is enough to change their behavior and to shift their focus into a different direction.
After some discussion Sam ultimately asked what I would add to what CampaignZero has already posted and ultimately it’s my view that during and possibly even before we can really get in and change police culture away from “us vs them” we might need to cultivate a stronger crop of citizen advocates to stand up for those who can’t stand up for themselves. IMO the primary source for these advocates would be the public defenders office.
Public defenders are grossly underpaid compared to prosecutors.
Local prosecutors make, on average, 25 percent more than public defenders, the majority of which comes from local supplements to their state salaries, he said.
The same is true across much of the state, said DJ Geiger, deputy executive director of the Virginia Indigent Defense Commission, the state agency that oversees Hingeley's office.
Hingeley wants to change that. He and several allies in the criminal justice system, including Albemarle County Sheriff Chip Harding, are lobbying local elected officials to close the pay gap.
Hingeley makes roughly $123,500 annually. Albemarle County Commonwealth's Attorney Denise Lunsford makes $150,090, including nearly $19,000 in local funds. Charlottesville Commonwealth's Attorney Dave Chapman makes about $151,350 between his state salary and a $25,000 local contribution. Neither prosecutor responded to an interview request for this story.
They’re understaffed.
With the office of the Montana State Public Defender underfunded and understaffed, six people appeared for felony arraignments in 15th District Court Wednesday, June 25, but no pleas were accepted because no defense attorneys were present. All were new cases and all but one qualified for a public defender, but a lack of adequate staffing with the Public Defender’s Office left some of the six people waiting for attorneys to be assigned to them, even after arraignments had been scheduled. The Public Defender’s Office appointed a Glasgow attorney to represent two of the people, but he was not present in the Wolf Point courtroom.
Consequently they’re overworked.
Karen Duncan, chief public defender in Minnesota's 3rd Judicial District, has been able to balance the public defender budget in her Rochester-based district without layoffs, thanks to leaves and departures. The result, however, is that some defenders juggle 250 open cases, several times the recommended national standard, and attorneys often meet with clients for no more than a few minutes at a time.
...
“It’s simply that we don’t have anybody we can assign,” said Duncan, who is based in Owatonna. “I find people sleeping on the couch of our Owatonna office because they’ve worked all night, and they’re catching a nap before court. … Everyone recognizes we’ve got a bad situation here.”
If simply the threat that affluent people just might have access to lawyer is enough to make some cops think twice before ginning up a bogus arrest — which could turn violent at any moment — then if we can re-balance the scales of justice inside to court to assure that every defendant no matter how minor the offense actually has access to representation that is competent and effective, that fact alone can be a game changer. If police have to prove their case each and every time, they won’t have the wiggle room to get away with what they do now.
The second issue has to do with Police own Internal Affairs and how they function.
As CampaignZero rightly points out many police are often protected from responsibility and liability by their police unions and they recommend changes to union contracts to address this.
Police unions have used their influence to establish unfair protections for police officers in their contracts with local, state and federal government and in statewide Law Enforcement Officers' Bills of Rights. These provisions create one set of rules for police and another for civilians, and make it difficult for Police Chiefs or civilian oversight structures to punish police officers who are unfit to serve.
The prime section of this agenda item includes changing the following:
Remove contract provisions, local policies, and provisions in state Law Enforcement Officers' Bills of Rights laws that:
- allow officers to wait 48 hours or more before being interrogated after an incident
- prevent investigators from pursuing other cases of misconduct revealed during an investigation
- prevent an officer's name or picture from being released to the public
- prohibit civilians from having the power to discipline, subpoena or interrogate police officers
- state that the Police Chief has the sole authority to discipline police officers
- enable officers to appeal a disciplinary decision to a hearing board of other police officers
- prevent an officer from being investigated for an incident that happened 100 or more days prior
- allow an officer to choose not to take a lie detector test without being punished, require the civilian who is accusing that officer of misconduct to pass a lie detector first, or prevent the officer's test results from being considered as evidence of misconduct
Right now if there is a complaint made against an officer the complaint is placed with the department itself where it may be ignored, the person making the complaint might find themselves targeted or harassed by other officers and if they’re lucky the case will be investigated by Internal Affairs who happen to work for the same police department as the officers who are the source of the complaint. These situations aren’t commonly handled as a matter for law enforcement, they’re handled as an employment issue, hence the union is able to negotiate to the benefit of officers.
My second suggestion is to take Internal Affairs completely out of the department where they all work for the same chief or the same commissioner so it’s no longer an employment issue and a potential conflict of interest, it’s a crime issue. It should be a matter of public integrity and the officers assigned should have autonomy to handle complaints about police misconduct in the same way that police can respond to a 9-1-1 call. Complaints wouldn’t go directly to police, they would go to a public integrity office to follow up on in a way that protects the confidentiality and safety of the complainer. A rebuilt and reconstituted public defenders office could and perhaps should work hand-in-hand with the public Integrity officers who should have full police powers and investigating ability to follow up on complaints by citizens, even those who may have been arrested, and even be in the field embedded with police when they roll onto a scene.
These would be the “Good Guy” cops who are there to specifically to document and report what they see with the power to literally arrest an unnecessarily violent cop on the spot.
They could and should also go undercover or use informants to test the integrity of officers in the same way that civil rights organizations use civil rights testers when attempting to detect discrimination in lending, housing and employment.
Testing is a term that refers to a process of checking the housing market to determine the nature and extent of discriminatory treatment accorded different home seekers. Two individuals, alike in every respect except the variable being tested, are sent to the same rental or sales office. Testers take careful notes of what transpires. Differences in treatment often form the basis for the successful resolution of a housing discrimination complaint.
The testing process has been consistently supported by federal courts as a legitimate, necessary, and often the only method available to identify practices of unlawful housing discrimination. Fair housing litigation filed with the help of the FHC has been based, in large part, on the evidence provided by FHC testers. Both the sworn oral testimony and the actual written reports of testers are routinely accepted by courts as evidence of discriminatory conduct by a defendant.
Being an undercover person testing whether a police officer is going to follow the law in how he handles one citizen verses another citizen is a risky proposition, but in departments or specific officers that have a high rate of complaints against them it may be an effective tool either to confirm or refute the essence of those complaints.
Just to put it in perspective one of the most prominent and well known former Internal Affairs Officers before the public is CNN contributor and former NYPD Detective Harry Houck who says Beyonce is “anti-Police and Racist” for her Superbowl performance. This guy is simply a long, long way from being unbiased about police misconduct, because his first reaction is always to defend the cops and blame the victim for getting themselves beaten, tased, choked or shot. We need people with far more independence than that of Houck who said “Sandra Bland was arrogant” when she was arrested for not signaling for a lane change, even when you don’t have to signal when getting out of the way of an emergency vehicle.
Now, I realize these ideas aren’t perfect but it would be a significant improvement on what we have now. Rather than have civilians attempt to document things and then push forward against a bureaucracy to gain access to key surveillance video only to wait for a year as we saw recently in Chicago with Laquan McDonald’s shooting, or to have once-in-a-while Special Prosecutors brought in only when things turn extreme and deadly, we should have constant representation, constant pressure and scrutiny on police and their activities all the time with the ability to apply subpoena and search warrant power on the police and their records. We need to have the leverage and resources to provide for the public interest when police go too far, when they target minorities for excessive stops and searches, when they trump up bogus charges, when they get too physical because just as the “broken windows” model claims waiting until things get to the point of life and death and a permanent State Special Prosecutor gets brought into the picture IMO it’s probably far far too late. Blood has already been spilled by that point, now you’re just trying to clean up after the fact. We should also try to find a way to prevent needless bloodshed in the first place. This sort of thing is what I mean when I think of “Independent” investigations, a full-time 24/7/365 legal and investigative operation that doesn’t just spring up in response to the not infrequent enough tragedy like Freddie Gray or Eric Garner but one is there in the trenches day in and day out.
The Watchers need to be closely Watched.
Of course police forces need to be properly trained, they need proper support and gear to do their job safely and effectively. But if we don’t have a strong and robust oversight portion with teeth to bring the bad cops to heel I suspect we’ll still be right back in the same position in yet another 30 years and I for one really don’t want another generation fighting this same fight all over again.
We have the momentum and we need to act on it.
The floor is open to discuss.