By Ryan Anderson. Contributed to and edited by William E. Chavez
If you prefer, you can download a PDF of this essay here.
So many have devoted their words in the course of this, our latest reopening of the national wound of racist injustice, to expounding upon the historical context of Black urban unrest. A common comparison is made towards the convulsions of 1965, 1967, and 1968; accordingly, some look to a report authored by the federal government in the wake of those protests, the one given by the famous Kerner Commission, for answers on what to do next. That report, requested by President Johnson in July 1967, appeared on the last day of February 1968. It earned the praise of the Reverend Dr. Martin Luther King Jr., who called it a “physician’s warning of approaching death, with a prescription for life.”
Little more than a month later, MLK was assassinated, and unrest far worse than anything seen before shook the nation’s cities. Washington D.C. was hit especially hard: twelve days of riots were only quelled by the arrival of 13,000 troops, the largest occupying force in an American city since Appomattox. Bobby Kennedy, on campaign for the presidency on the night of MLK’s death, helped to save Indianapolis from destruction with his historic, impassioned speech given in the heart of the city’s Black community: “Even in our sleep, pain which cannot forget falls drop by drop upon the heart, until, in our own despair, against our will, comes wisdom through the awful grace of God.” Johnson never picked the Kerner Commission report up off his desk after the MLK riots.
More than 50 years on from that tumultuous period, thousands of federal troops have again descended upon our nation’s capital to beat back civil unrest, this time precipitated by the police murder of George Floyd. In response, while protests just outside the White House’s windows raged, President Donald Trump pulled out his loudest dog whistle and called for “law and order”.
Today, the unheralded guidance of the Kerner Commission is thought to contain evergreen practicable governmental solutions to help close the racial chasm. What, then, did the report recommend? Its stated aim, taken from Johnson’s mouth, “was to answer three basic questions: What happened? Why did it happen? What can be done to prevent it from happening again?” “It” was the spate of urban riots of the summer of 1967, concentrated in Newark and then Detroit, responsible for the deaths of over 85 Americans. The report’s famous “basic conclusion” held that “Our Nation is moving towards two societies, one black, one white—separate and unequal.”
The report made no bones about putting the blame for Black neighborhood tension on the shoulders of police-community relations. “[The] incidents,” it stated, “which increased tensions and ultimately led to violence, were police actions in almost half the cases; police actions were ‘final’ incidents before the outbreak of violence in 12 of the 24 surveyed disorders.”
As for answering the question “What can be done?,” the report zeroed in on the “abrasive relationship between the police and minority communities,” exhorting local governments and police units to “eliminate abrasive practices,” “establish fair and effective mechanisms for the redress of grievances against the police,” “provide more adequate police protection to ghetto residents to eliminate their high sense of insecurity,” “recruit more Negroes into the regular police force,” and so on.
While those answers ring true today, our project here is not to look merely to the recommendations of reports from a half-century ago, but rather to assess a new set of solutions to the same ugly problem, as changes in the social fabric since 1968 admit today a different avenue of reform. When the wound was opened in 2014, in Ferguson, MO, generational and technological change allowed a new reporting to reach the rest of the country, one which electrified and enervated the American public as the open wound had never before. This was the start of the Great Awokening, a historic and rapid shift in the average American’s attitudes towards racism. Before Ferguson, “most Americans believed there was no longer any need for the country to make changes to address [racial] inequality,” in Yglesias’ words. In opening middle America’s eyes again to the problem of race and police violence, the Great Awokening seemed to open the possibility of foregrounding a broad anti-racist approach to liberal politics. This contrasts with coalitional politics as the Democrats once played them; no longer were anti-racist policies meant only for those whose burdens they would directly relieve. Identity politics would become the entree as opposed to the side dish in forging a new Democratic coalition. This, anyway, was Hillary Clinton’s idea in her 2016 bid for the presidency — she may have been four years too early.
But we suspect that the great and powerful movement on global display today, which leverages the breadth of liberal American energy to multiply the emancipatory, Black force it projects, has been aided by that post-Ferguson empathetic shift. In these mass marches, whether in Portland or Atlanta, the concerns of Black people take pole position. Those who could not in the murder of George Floyd see their own body in the street may recall instead the general injustice visited upon them by that economic system, inextricable from its political, policing extensions, which foisted precarity onto a nation. This new mass line is a hopeful development granting time, space, and pressure to the just cause which languished in the streets of Ferguson, and on a Staten Island sidewalk, and in the back of a Baltimore police van.
Our title is taken from another landmark government report on the nature of race relations, this time prompted by Harry Truman, who followed its chief recommendation and in July 1948 desegregated the armed services by fiat. Our report recommends several approaches towards justice, increasing in the horizon of time needed to effectuate them. Now, we need justice for the dead, as well as for the acutely abused, and we need a change of government. Soon, we need new accountable supervisory mechanisms, a halt to programs which encourage police impunity, and massive reform at the most local levels. In time, we need to wholesale reforge the federal relationship, to infuse local government once more with the popular blood it needs to protect and serve us. To Secure These Rights worked in the 1940s — perhaps it can work again now.
- Restitution and relief — what’s needed today
- Justice for George Floyd
- Justice for protestors abused by police
- Voting out Donald Trump, and what comes next: the case for prosecution of the president, his family, and top aides
- Revamping the system — pinching police departments from the top down and the bottom up with greater oversight
- Strengthening federal oversight of police
- Ending federal programs that exacerbate problems with American policing
- Assessing local reforms, and beyond
- Breaking the wheel — forging a new federal relationship and bringing power back to the community
1. Restitution and relief — what’s needed today
Justice for George Floyd
On May 25, 2020, George Floyd died under officer Derek Chauvin’s knee. Minneapolis Mayor Jacob Frey moved the next day to fire Chauvin and the three other officers present for the incident. Protests began the same day, but Chauvin was only arrested for Floyd’s murder four days later, once the unrest had spread.
Initially, the case was handled by the Hennepin County Prosecutor’s Office and Chauvin was charged with second-degree manslaughter and third degree murder. On May 31st, Minnesota’s governor handed the prosecution off to the state’s Attorney General, Keith Ellison (previously most famous for coming in second in the race for Chair of the DNC — Pete Buttigieg came in third). On June 3rd, the nation burning, AG Ellison moved to arrest the three other officers present and to upgrade Chauvin’s charge to murder in the second degree.
Elsewhere in Minnesota’s legal machinery, action has begun against the Minneapolis Police Department. Filed by the MN Department of Human Rights, it alleges continuing violations of the state’s Human Rights Act dating back to 2010. The city’s civil rights agency has launched an open investigation as to whether MPD’s training, policies, and procedures, including its use of force protocols, amounts to systemic discrimination and civil rights violations against Black people and other people of color.
The arrests are a promising start, especially weighed in comparison to the murders whose perpetrators could never even get a charge verified by a grand jury against them. Daniel Pantaleo, who choked Eric Garner to death, went unmolested and returned to protecting and serving for five more years, the time it took NYC Mayor Bill de Blasio and NYPD Commissioner James O’Neill to summon the will to fire him. Likewise for Darren Wilson, who killed Michael Brown; Tim Loehmann, who killed Tamir Rice; the sheriff and jailers who killed Sandra Bland. Breonna Taylor was shot to death in her bedroom in Louisville, KY three months ago, and we’re still waiting on charges against her killer cops today.
And while it’s galling that the arrests of Chauvin et al pre-required eight days of public furor, arrests themselves are only fickle things. The most massive outrages in recent times have come not before arrests are made but after, when convictions are escaped — this was the case in 1992, when Rodney King’s beaters dodged jail. 64 died in Southern California following that decision. Trayvon Martin’s killer walked on his charge and was bold enough (and the spineless promoter morally hollow enough) to schedule a celebrity boxing match against DMX. Jeronimo Yanez, who shot Philando Castile five times while his baby sat in the backseat, was acquitted, as were the policemen who drove the van while Freddie Gray’s spine unwound.
Frankly, we have to hope (and what a perverse hope) that the case follows that of Walter Scott, who in April of 2016 was shot five times in the back while running away from police. The officer who did that, Michael Slager, was sent to jail by a South Carolina grand jury in July 2016, let out on bond in January the next year, and nearly got away on a mistrial. He couldn’t, however, beat the federal charges and in December 2017, Slager was sentenced to 20 years for second degree murder. He’s in the federal prison at Englewood, CO now.
Sometimes, however, not even a conviction and jail time will restore justice. Dylann Roof is today on death row in Terre Haute, IN, but unshakable remains the fact that on his way to jail after the massacre he perpetrated at AME Zion Church, his detaining officers took the time to ask Roof if he was hungry. He was, and so the squad car porting a mass murderer to face justice pulled into a Burger King, where the state’s officers bought Roof a Whopper. Because God has a sense of humor, when he got to jail, his cell-block neighbor was none other than Michael Slager.
Sadly, smart money would bet that there’ll be no conviction. After all, since 2005, there have only been 35 police officers convicted of a crime involving a fatal on-duty shooting or interaction. Criminal convictions, it needn’t be said, are rare.
Justice for protestors abused by police
Despite its many flaws otherwise, social media has been instrumental in circulating images and videos showing conditions on the ground in the George Floyd protests. That reportage has helped to lay bare a glaring contrast between the police treatment of predominantly white, occasionally armed protests and the treatment of those predominantly Black protests affirming the cause of Black Lives Matter.
Historically, white people have been able to count on police protection when exercising their First Amendment right to assemble, even when those assemblies became militant, like the one that stormed the Michigan State Capitol in April. By contrast, Black people and other people of color have rarely received the same protections when they endeavored to exercise their constitutional freedoms. For Black people and other people of color, even police noninterference is often too much to ask.
We don’t have to look too far back for an example of this dichotomy; the backdrop of a global pandemic has exposed this racial injustice as clear as day. Recall how in Huntington Beach, CA, predominantly white demonstrators protested against Governor Newsom’s beach closures, or how in San Diego, white protestors carried signs saying “Let my people golf”; taken at face value, these protests alleged constitutional violations arising from the desperate efforts of state governments to mitigate the effects of COVID-19. One Huntington Beach officer overseeing the demonstration noted to NBC that “there were no arrests”.
Not even a month after these anti-lockdown rallies, the George Floyd protests emerged, composed chiefly of Black people and their non-Black allies. In response, police forces embarked on an elaborate campaign of violence: pepper spraying demonstrators, tear gassing demonstrators, ripping demonstrators from their vehicles, shooting at demonstrators with rubber bullets, and arresting demonstrators by the thousands. A photojournalist and several others were partially blinded. Children were maced. Bystanders were bloodied.
The escalation and use of force against peaceful protests against discriminatory police brutality reached a boiling point on June 1st, when President Trump and Attorney General Barr ordered federal officers to fire tear gas, pepper spray, rubber bullets and flash bombs into a large crowd of peaceful protestors at Lafayette Park, just in front of the White House. Without provocation or notice, the federal government unleashed its violent agents on peacefully protesting citizens, and for only one purpose — to allow the President to seize a photo opportunity in front of St John’s Episcopal Church. The discriminatory use of force against demonstrators protesting systemic racial injustice and police brutality against Black people result is abhorrent, and also, all too American.
The message is disturbingly clear: if Black people and those who share their cause dare to exercise their constitutional rights they will meet active, violent resistance by the state. Any measure of justice achieved for victims of this police backlash is incomplete until Black people gain the right to autonomously exercise their constitutional freedoms.
Voting out Donald Trump, and what comes next: the case for prosecution of the president, his family, and top aides
We can keep this short: on New Year’s Day 2020, things looked pretty good for Donald Trump. Despite three years of roiling politics from the local level to the galactic with his brash, shameless, narcissistic authoritarianism, the president had made it to his reelection year with little trouble either on the homefront or abroad, and the greatest economy since Lyndon Johnson sat in the Oval Office. Then came the fall, and the worst abdication of presidential leadership since, well, his Republican predecessor.
If it had been COVID-19 alone, perhaps there would have been room in the historical record for a later, rose-tinted reassessment of Trump’s failures. But once George Floyd was killed in Minneapolis, we had to remember that this was the president who told the Suffolk County, NY police force in 2017 not to “be too nice.”
“Like when you guys put somebody in the car and you’re protecting their head, you know, the way you put your hand over it. Like, don’t hit their head, and they’ve just killed somebody. I said, you can take the hand away, O.K.?,” Trump offered.
Despite making initial overtures towards the protestors’ aims in getting Derek Chauvin arrested — goals so nakedly just that even W. could get behind them — Trump took his sharpest turn towards autocracy amid the nationwide protest, urging governors to “dominate” the protests, gassing protestors at Lafayette Park, D.C. for a photo-op, and unconstitutionally threatening to send the military into cities and states with active protests, to pick only the rottenest of the low-hanging fruits.
Beyond that, he has presided over an administration that abandoned the push, flawed and limited as it may have been, begun under the Obama administration towards greater federal oversight of the nation’s most problematic police forces. Two months into his job, Jeff Sessions, Trump’s first attorney general, ordered a gag order of all the reform programs spurred by the Obama administration. In July of that year, Sessions lamented a judge’s finding that his objections towards the Baltimore PD’s reforms had come too late and that the reforms would go on as planned.
“I have grave concerns that some provisions of this decree will reduce the lawful powers of the police department and result in a less safe city,” Sessions said at the time. Even when Trump got tired of Sessions and kicked him back down to Alabama late in 2018, as one of his final acts, Sessions formally killed the program of federal investigations into local police departments.
In October 2019, Trump traveled to Minneapolis for a campaign rally and brought up on stage one of his staunchest local supporters — Lt. Bob Kroll, a member of the Minneapolis police department and notorious head of its police union. Kroll basked in the rally’s cheers and lavished praise on, in particular, Trump’s DOJ. “The Obama administration and the handcuffing and oppression of police was despicable,” he said.
“The first thing President Trump did when he took office was turn that around, got rid of the Holder-Loretta Lynch regime and decided to start letting the cops do their job, put the handcuffs on the criminals instead of us.” Eight months after that rally, George Floyd was dead under the knee of one of Kroll’s card-carrying members.
The election of Joe Biden will not be a panacea — far from it. There’s not that much we can even say about what a Biden administration will entail, Panglossian wonk commentary notwithstanding. But even if it allows only for a return to a robust, active Department of Justice, it will have been worth it for the millions of Americans still living today under unrehabilitated policing regimes.
But why stop there? A shocking upswing in what has been called “elite deviance” is both cause and consequence of the maladministration we’ve been living under for the past three years. Think of the decline in white-collar prosecutions, at their lowest level in 2019 since data has been available. Or how between 1996 and 2004, researchers estimate that large-scale corporate fraud sucked $3.2 trillion out of the economy. In a blockbuster article for The Huffington Post in February, Michael Hobbes explained, “Country-club nepotism and Gilded Age avarice are nothing new in America, of course. But the rich are enjoying a golden age of impunity unprecedented in modern history…An entrenched, unfettered class of superpredators is wreaking havoc on American society. And in the process, they’ve broken the only systems capable of stopping them.”
Faced with the most criminal regime since the Gilded Age, the incoming Biden administration will have a novel opportunity to go after Donald Trump, his family, and his closest accomplices. The transition of administration has been the hiding place for impolitic presidential actions since John Adams forced through the judicial appointments that would form the plaintiff’s case in Marbury v. Madison; think otherwise of Gerald Ford’s vexed decision to pardon Richard Nixon, Bill Clinton letting corrupt financier Marc Rich walk on the largest tax evasion in history, or even Barack Obama’s clemency for the embattled whistleblower Chelsea Manning.
We can’t imagine the national fabric being stitched back together with a sweetheart deal between presidents 45 and 46, and certainly Biden doesn’t owe Trump anything in the way Ford may have felt he did to Nixon. Renato Mariotti, writing amid the early impeachment dustup last year, imagined what post-presidency suits against Trump and co. could look like, picking up where the political process failed to ensnare the former president and at least co-conspirators like Corey Lewandoski and Don McGahn. Maybe prosecutorial attention could be devoted toward the cozier relationship that emerged between the Trump real estate business and agents of states that sought closer relations with the administration, not least of which the Saudi government’s barely-arms-length, too-on-the-nose dealings with Trump’s DC hotel.
Media attention on Trump’s criminality-in-office has waxed and waned through his presidency, but as long as mere interested observers like us can rattle off easy and obvious cases like the above, it’s hard to imagine a motivated US Attorney suffering from failure of imagination. And beyond the immediate consequences of putting the Trump administration’s higher-ups in prison, as Vox’s Dylan Matthews noted, a probe of Trump and his officials is “required as a deterrent for such behavior in the future. Elite impunity will never end without a commitment to ending it”.
2. Revamping the system — pinching police departments from the top down and the bottom up with greater oversight
Strengthening federal oversight of police
The ability for the Department of Justice to investigate and intervene in the practices of local police departments has moved like a slowly rolling stone, gathering just a sprinkling of moss after each outrageous outburst of brutal violence. After Rodney King, in the halcyon days of legislative energy and capacity, Congress passed the now much debated 1994 crime bill, the Violent Crime Control and Law Enforcement Act. While Joe Biden’s bill’s less savory legacies include the “three strikes” law and large increases in the incarcerated population, it also included revisions to civil rights statutes which gave the DOJ the power to conduct “pattern or practice” investigations — that is, to determine whether local law enforcement agencies engaged in excessive force, biased policing, or other unconstitutional practices.
By 2015, under those statues, the Clinton, Bush, and Obama Departments of Justice had opened 69 investigations, at a roughly even pace. In 1999, the feds went after the police of Prince George’s County, MD, a place near and dear to the authors of this piece, for siccing dogs on people never suspected of having committed a crime. Excessive force investigations like that motivated the majority of investigations; discriminatory conduct led to the next greatest share.
And while federal investigations began at the same rate through the administrations, the Obama DOJ was more likely to settle these investigations via the adoption of binding consent decrees. Today, as outlined above, “pattern or practice” investigations have halted. Bill Barr, Trump’s current Attorney General, has shown no signs of deviating from Sessions’ position.
What might a revitalized federal oversight look like? In recent days, Congressional Democrats debuted their vision by introducing the Justice in Policing Act. Championed by Senator Cory Booker of New Jersey, who released his plan following the onset of protests, the bill is wide-ranging in its designs. It tweaks the statutes empowered in the 1994 bill to open more police actions to federal investigation. It allocates funds to state Attorneys General for their own “pattern or practice” investigations and grants the DOJ subpoena power in their investigations. It bans no-knock warrants, the kind that led to the death of Breonna Taylor and to the hole burnt into the chest of a 12-month-old in its crib in Georgia. It bans chokeholds. It curtails the circumstances in which accused officers can claim qualified immunity. It attempts to limit transfers of “military-grade” equipment to police departments. Following a century of attempts, it federalizes lynching as a hate crime.
The novel and likely most impactful elements of the bill, however, concern transparency and data collection at the federal level. Booker’s original proposal called for a “registry for cases of misconduct, use of force incidents, and people killed at the hands of police”. The bill expands on that vision. It seeks to create a federal registry of “all federal, state, and local law enforcement officers” that tracks the following data: misconduct complaints, discipline records, and hiring and firing records. Another provision seeks to mandate that states “report to the Justice Department any incident where use of force is used against a civilian or law enforcement officer”.
The motivation for a federal police registry is given by what can happen in the best-case scenario for redressing brutal incidents. Even when justice overcomes all other obstacles and catches the cape of wrongdoing officers, it is plainly easy for those officers to take up their badge again at a different precinct, or with a different county, or in a different state. That was the case with Tamir Rice’s killer, Tim Loehmann. He was deemed “unfit to be a police officer” by the department of Independence, OH and fired after only a few months on their force. Undaunted, he applied to work in Cleveland’s city police, spun a story of wanting “more action” than he could find at the suburban level, and got a job. Though his dismissal from Independence highlighted in particular an emotional breakdown at a gun range, he was given a badge by Cleveland and allowed to respond to a report of a boy playing with what looked like a gun in the park, where Loehmann would arrive, and, in under three seconds, shoot the boy to death.
The need for the nationwide registry is better understood with analogy to the struggle of school desegregation. When “massive resistance” broke out after Brown v Board, quieter protests took place as well; families voted against the policy with their feet, and white flight removed the prospect for desegregation of the nation’s most impoverished districts, for there were simply no more white schools to attend. A quirk of municipal governance in North Carolina, however, presented an opportunity. In the years leading up to 1964, the city of Charlotte consolidated the schools within its remit into the Charlotte-Mecklenburg district, which covered more than 500 square miles. The geography covered by Charlotte-Mecklenburg schools removed the potential for white flight, for the district was merely too large for families to escape and still be able to work in Charlotte.
In 1964, Reverend Dr. Darius Swann and his wife, Vera, filed against the district when it refused to allow their son to attend the integrated school in their neighborhood. In 1969, Judge James McMillan ruled for the Swanns and ordered a large-scale busing program to integrate the district. The Supreme Court affirmed McMillan’s ruling in 1971’s Swann v Charlotte-Mecklenburg. Swann and forced busing, as Nikole Hannah-Jones put it for the New York Times last fall, “was extraordinarily successful in the South”.
Clint Smith, in a 2016 issue of The New Yorker, wrote, “District after district modelled its integration plans on Charlotte…By 1980, the school district had reached an unprecedented level of integration.” Sadly, that progress was halted in 1999’s Capacchione v Charlotte-Mecklenburg, which ended mandatory busing. Nationwide, desegregation reached its high water mark around 1990, and everywhere schools are more segregated today than they were in the era of forced busing.
If Swann and the example of Charlotte-Mecklenburg schools show the power of regional enforcement, of not letting social ills concentrate in racially-driven enclaves, the example of Detroit’s schools teaches just how far doing nothing can go. Milliken v Bradley, decided by a very different Supreme Court just three years after Swann, held that there was nothing to be done about desegregation across district lines. The unit of desegregation would remain the district. In his dissent to Milliken, Justice Thurgood Marshall offered a forecast: “The Detroit-only plan simply has no hope of achieving actual desegregation…Under such a plan, white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown was aimed at will not be cured but will be perpetuated.” He was proven correct, as unabated white flight swelled the populations of the fifty-three suburban school districts outside Detroit, while redlining and restrictive covenants kept Black families within the city proper. In 2015, 83% of the students of Detroit public schools were Black.
A federal registry is the Swann solution, curtailing the ability for bad actors to slip the bonds of official decisions and exit the penumbra of oversight. Accountability under the Milliken solution, which abides today, offers only false promises in even the best of cases.
A rueful postscript is provided by the history of Charlotte-Mecklenburg schools since Capacchione — segregation by both race and income set in once more, condemning Black students, and especially poor, Black students, to a quality of education one report called “academic genocide.” Lest you think this metaphor has reached its breaking point, note the conclusion of Smith’s New Yorker piece: “One cannot disentangle the state-sanctioned school resegregation that poor black students in Charlotte experience from the police killing of a black man waiting for his son to get off the bus from elementary school.”
Ending federal policies that exacerbate problems with American policing
In a brilliant 7-page paper published in 2017, Casey Delahanty of Gardner-Webb University and his coauthors investigated the effects of police militarization on civilian deaths. By militarization, they meant “the embrace and implementation of an ideology that stresses the use of force as the appropriate and efficacious means to solve problems.” Militarization increases with military material, and in the wake of the so-called 1033 Program established as part of the 1997 defense authorization, many police departments around the country had found themselves with a lot of military material. “Between 2006 and April of 2014 alone, the Department of Defense transferred over $1.5 billion worth of equipment [to police departments] including over 600 mine-resistant ambush-protected vehicles, 79,288 assault rifles, 205 grenade launchers, 11,959 bayonets, 50 airplanes, 422 helicopters, and $3.6 million worth of camouflage and other ‘deception equipment,’” Delahanty et al wrote.
They assessed what impact these transfers to local police forces had on police violence towards civilians, and found, unsurprisingly, that “the receipt of more military equipment increases…the change in civilian deaths”. But the clever trick lay in their next analysis, for they acknowledged the potential endogenous effect — that precisely the police departments which expected to respond with more violence ordered the most military equipment. Instead, the authors examined transfers of military equipment against police killings of civilian dogs, a figure they reasoned would have no bearing on decisions to order military equipment. “Holding all else constant,” they wrote, ”police that received the highest 1033 transfers kill dogs at an order of magnitude higher rate than those with no transfers”.
The 1033 Program merely has to go. After the outrage in Ferguson, where much of the product of these military transfers was televised to the nation via CNN, Congress offered per-police organization data on who got what. With that, the Marshall Project, a nonprofit group, built a perversely fun little tool you can use to see what police in your hometown got. For example, the police in our hometown of Montgomery County, MD, picked up a mine resistant vehicle worth $733,000, as well as seven rifles. The police force responsible for patrolling the smaller footprint of the University of Maryland, however, went above and beyond, netting themselves 82 rifles, 16 shotguns, and 300 magazines full of ammunition.
And, as in all things, though the Obama administration started to roll 1033 back, and even succeeded in recouping some of the materiel from local agencies, President Trump (with Jeff Sessions’ help) reversed that decision. The tap is fully open once more. Senator Brian Schatz of Hawaii has moved in recent days, as he did in 2015, to bring a stop to the program. Another proposal from Rep. Ruben Gallego of Arizona, debuted at the start of June, calls 1033 “..one of the most absurd programs in the United States government”.
“Community police officers are not soldiers. Fellow Americans are not the enemy. We must stop providing weapons of war to police,” Rep. Gallego adds.
As discussed above, the problem we’re grappling here with often lives on past the apprehension of a bad police. While we discussed how the Justice in Policing Act attempts to remedy that slipperiness by expanding the cases available for criminal investigation by the DOJ, in civil suits, victims are often made helpless by the doctrine of qualified immunity. Qualified immunity was established by the Supreme Court in 1982, and holds that “government officials cannot be held accountable for violating the Constitution unless they violate a ‘clearly established’ constitutional rule,” as the Institute for Justice’s John Kramer put it. In practice, this reasonable-sounding rule has been so constricted that presently the constitutional violation must occur in the exact same circumstances as a previously punished violation.
Qualified immunity is rumored to be on the minds of the Supreme Court justices as they consider their cases for the next term, and one of those cases exhibits well just how precise qualified immunity claims can be and still protect the accused officers. In Baxter v Bracey, police in Tennessee sent their K9 unit out to find a suspect, Alexander Baxter, who was discovered in an empty house, seated on the floor with his arms up. The police caught up to the dog and Baxter, and then directed the dog to go after Baxter once more, despite the fact he hadn’t moved. Baxter’s attorneys knew of a case from 2012, Campbell v City of Springboro, which held that it was specifically unconstitutional to deploy a dog against a suspect who was not fleeing or resisting. And so they filed civil suit against the officers, looking for damages against the pain suffered by the dog bite.
The Sixth Circuit, on appeal, rejected Baxter’s claim, and said that in the case of Campbell, the victim had been lying down, not seated with his hands raised, and that that factual distinction was sufficient to invoke qualified immunity — the law had not in fact been “clearly established”.
Time will tell whether a dog bite brings down qualified immunity and allows a litigious check on police victimization of civilians to resume again. In case that fails, the recently introduced Democratic act does include a provision to modify the statute on which the doctrine of qualified immunity rests.
Assessing local reforms, and beyond
Policy reform is essentially an economic problem — subject to a budget constraint, the amount of political capital available to be spent, maximize the desired effect. Solving this problem requires assessing the different collections of choices available to political actors and deciding which among them maximizes. To find this solution, we must start by assessing individual reforms in turn, both their costs and their benefits. Once done, we will have a sense for which reforms will be the most valuable to undertake.
We cannot forget that the political capital available to liberal forces today has its source in the murder of George Floyd, only the latest Black body made cold by the American state. That terrible burden makes it more important than in other reform pushes that the policies pursued be maximally valuable.
One avenue of reform involves changing how policing is done on the ground. This was a particular focus of the Kerner Commission’s report, which, among other changes, urged “demotorization”; that is, getting policemen on the beat out of their squad cars and onto the streets. “The patrolman comes to see the city through a windshield and hear about it over a police radio. To him, the area increasingly comes to consist of only law breakers,” the report averred, wringing its hands.
What demotorization was to the Kerner Commission, the body camera is to modern observers. Even policemen, the logic goes, fear a panopticon. However, since the widespread introduction of body cams some years ago, several studies have found little to no evidence of their affecting police decisions — “that is, the behavior of officers who wore cameras all the time was indistinguishable from the behavior of those who never wore cameras,” as Jennifer Doleac, a Texas A&M economist, summarized. While those findings are surprising, we believe they put to bed only one model of how police behavior can lead to brutal incidents.
Consider the general setup: a force of several officers goes out on patrol daily. Every so often, each officer will run into a high-tension situation, which can go one of two ways: it can deescalate or it can end in a brutal incident. Say the probability that a high-tension situation in a brutal incident depends only on the personality, or what we’ll call the reaction function, of the officer facing it. The reaction functions of the force as a whole are distributed however you like, but it holds that some officers have higher chances of committing brutal incidents than others.
The study then eliminates as one causal mechanism the ability for body cams to change the reaction functions of individual members of the force, because we see that cops who wear them commit brutal incidents at the same rate as those who don’t. That is to say, the study seems to disprove the hypothesis that merely wearing a body cam can change the reaction of an individual policeman to a high-tension situation.
Another mechanism, however, by which body cams can impact the total prevalence of brutal incidents has to consider the composition of the force through time — that is, it has to consider entry and exit.
Take exit first: in the naive model, policemen leave the force basically randomly, as if they retire. This shouldn’t change the overall distribution of reaction functions (since the expected exiting policeman will just have the average personality), and so it shouldn’t change the prevalence of brutal incidents. As for entry, assume that new policemen have reaction functions sampled at random from the prior existing force; in other words, policemen only hire people who look like them.
Now introduce body cams, and say that if a policeman is caught committing a brutal incident with body cam evidence, he is fired. At the outset, nothing about the entry-exit process changes, but as brutal incidents occur, those policemen who get caught leave the force. This will tend to change the distribution of reaction functions. If there were no normal entry or exit, this alone would tend to lower the prevalence of brutal incidents, though at the cost of a police force that didn’t employ anyone after a while.
With entry, new policemen are sampled from the changing distribution of reaction functions, so every new policeman will be less likely to commit a brutal incident than they would be in the naive case. Over time, the average reaction will become far less likely to turn a high-tension situation into a brutal incident.
This hypothesis will take longer to test, as it requires hiring and firing, which is slow. But we remain cautiously hopeful of its potential to describe the changes increased surveillance of officers will have on policing. In fact, studying entry and exit has shown that even incremental reforms aimed at that kink in the pipeline can improve policing on the ground.
Taking data from 25 of the nation’s largest cities, NYU’s Anna Harvey and Taylor Mattia found that the implementation of affirmative action programs in police forces “substantially reduced racial disparities in crime victimization”. While the causal mechanism for that shift is less clear, and appears in particular not to sit in an increase of reported crime, the authors did find that the composition of reasons for reporting among Black victims seemed to improve, following implementations of affirmative action programs. “…black respondents appear to become more confident that their local law enforcement agency will believe that their victimization was important,” Harvey and Mattia wrote.
Another avenue of police reform involves edits to the superstructure in which policing work is done — the hierarchy of responsible agents, both police and civilian, who constrain and compete for police resources and power. The natural unit of attention here is the police union. Ironically, despite being a vehicle for literal state violence and conservative forces at large, police are among the most unionized of all professions — about a third of police are union, compared to fifteen percent of workers in the economy as a whole.
In a doggedly sourced investigation for the New York Times, Noam Scheiber, Farah Stockman and J. David Goodman raked over decades of public-mandated reformism and union obstructionism across the country. In the case of Laquan McDonald’s murder by officer Jason Van Dyke, which roiled the city of Chicago and ended the political career of Rahm Emanuel, prosecutors uncovered years of public complaints against Van Dyke’s conduct. “But a ‘code of silence’ about misconduct was effectively ‘baked into’ the labor agreements between police unions and the city,” the Times journalists wrote, and so nothing ever came of the complaints. Illiberality seems to be the watchword of police unions, as the Times investigation also provides several examples of union officials slow-walking Obama administration consent decrees, or spending their time making fun of elected officials, as when the St Louis police union published an ad with an alderwoman’s head pasted onto Mao Zedong’s body.
A truly damning piece of evidence was recorded by Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, all of the University of Chicago, whose 2018 study tracked the impact of a new set of collective bargaining rights extended to Florida’s sheriffs’ deputies. “…Collective bargaining rights led to a substantial increase in violent incidents of misconduct among sheriffs’ offices, relative to police departments,” the authors wrote. “…the right to bargain collectively led to about a 40% increase in violent incidents at [sheriffs’ offices], which appears to persist over time.”
What, then, the remedy? Alternate governance arrangements seem to make a difference, as Arianna Ornaghi of the University of Warwick found in a 2018 paper: shifting the power to hire and fire police away from elected politicians and towards independent committees lowers crime rates and increases crime clearances. That solution remains, however, orthogonal to the problem posed by illiberal and powerful police unions. One corollary reading might consider the fact that police systems were shown to be amenable to oversight and change on the margin, but only once the locus of change was removed from elected officials. That is, the police are not fundamentally unchangeable, even under strong unions; it’s just that they need to be made to listen to those the people elect to represent them.
It makes for a bad left argument, but any concerted push for reform will need to spend massive sums of political capital on seriously reworking the relationship of elected officials to police forces and their unions. This will not be aided along by most politicians — even Bill de Blasio of New York, a progressive dream at his first election in 2013, shrinks in front of the Patrolmens’ Benevolent Association. Ross Barkan wrote eloquently about the nature of NYC’s post-1970s urban revival, and just quite how precarious that revival might be, to give a narrative to de Blasio’s kowtowing, but at the end of the day the old adage may hold truest — no one ever votes for more crime.
Another push for reform that has gained a real head of steam in the course of the past week prefers not to call itself by that name — the cause of police abolition, the dismantling of police and police institutions in favor of the establishment of other community-based government services, is rapidly attaining a wider reach. The movement, linked to the rallying cry “defund the police,” is a reaction to the recalcitrance of police forces in response to decades of so-called reform.
Alex Vitale, a sociologist at Brooklyn College interviewed by Mother Jones, put the frustration with reform front and center: “Five years ago, in the wake of the murders of Mike Brown and Eric Garner and Tamir Rice, we were told, ‘Don’t worry, we’re going to fix it. We’re going to give the police implicit bias training. We’re going to hold some community police encounter sessions. We’re gonna buy some body cameras,’” he said.
“A whole set of what we often refer to as ‘procedural reforms’ designed to make the police more professional, less biased, more transparent—and that this is going to magically fix the problem. But things did not get better. People are still being killed, and more importantly, the problem of overpolicing remains.”
Another slogan for police abolition might be “unbundle the police” — Alex Tabarrok, an economist at George Mason University, used this phrase in his discussion of a new way to approach road safety. “Why should the arm of the state that investigates murder, rape and robbery also give out traffic tickets?” he asked. Restaurant inspectors reach millions of restaurants a year, he noted, and are hardly ever accused of restaurant brutality. More insidiously, he blamed much of the erosion of the protections of the 4th Amendment on the jurisprudence of traffic stops.
“Don’t use a hammer if you don’t need to pound a nail. Road safety does not require a hammer,” Tabarrok wrote.
Writing last summer in the Cardozo Law Review, V. Noah Gimbel and Craig Muhammad put forth an expansive consideration of police abolition. They trace the idea’s genesis to both the writings of W.E.B. DuBois and Angela Y. Davis’ 2003 book Are Prisons Obsolete? “Historically, armed professionalized police forces are a fairly recent entrant onto the violence-prevention scene, appearing in a form recognizable to our modern conceptions as late as the nineteenth century, yet they have been endowed with an almost timeless sense of necessity,” Gimbel and Muhammad write.
Activist and academic energy is starting to run into the inertia of municipal governance. In Los Angeles, Black Lives Matter leaders have pushed the “People’s Budget,” a redrawing of LA’s fiscal commitments, shrinking police funds by 90%. In response, Mayor Eric Garcetti announced cuts of $150 million from the city’s police, an amount relatively less than 90% of the force’s $3 billion allocation. Embattled Bill de Blasio has pledged an inchoate sum of cuts to the NYPD’s budget. And over the objections of Mayor Frey, a supermajority of the Minneapolis city council vowed just the other day to abolish and dismantle their police force.
What might such a revolution in policing — establishing a new order, not merely whittling away at the old — look like? It might look like Camden, NJ — or if you like, Apocalypse, NJ according to Matt Taibbi’s 2013 formulation. He documented a city “in a full-blown sovereignty crisis,” and spoke to a policeman who pegged Camden’s murder rate “somewhere between Honduras and Somalia”.
Squeezed by a true crisis in crime, a nonexistent tax base, a disengaged police force, and Chris Christie, Camden’s civilian leaders moved towards decisive action — in 2013, they disbanded the police force, firing every single officer. They replaced them with a new force, hiring civilians and sending them out on the beat. Writing for Reason.com in 2014, Jim Epstein noted citizens “buzzing” with the changes, and praised the mastermind of the overhaul, Jose Cordero, for his ruthless tactics against the moribund union force. Since then, basically everything police related has swung for the better — in freethink, Daniel Bier found that “murder is down by two-thirds, non-fatal shootings are down by half, and all other crime is down by 45%…clearance rates have recovered from a decades-long decline, improving from an abysmal 25% for murder and 23% for violent crime during the year of the transition to 69% and 42%, respectively, in 2017.”
Again, dismantlement is no panacea — Camden’s murder rate is still five times the national average. But the core fix is in place, as the police are more accountable to the people and their elected officials. Following on their successes, the Camden PD in 2018 established a nation-leading use-of-force policy, which holds that “de-escalation has to come first. Deadly force—such as a chokehold or firing a gun—can only be used in certain situations, once every other tactic has been exhausted,” according to a Bloomberg report. Moreover, those rules are easy to enforce: “An officer who sees a colleague violating the edict must intervene; the department can fire any officer it finds acted out of line.“ This is the fruit of radical police rehabilitation. When people turned out to march in Camden this past week, they didn’t meet cops with riot gear. They met cops with signs, who marched in solidarity.
3. Breaking the wheel — forging a new federal relationship and bringing power back to the community
Probably the most daunting needed shift as we turn towards reforming the nation’s police is to increase engagement in local government. Interest in politics and government broadly has never been as high as in the Trump era, a phenomenon measurable with any one of several lenses: historic voter turnout in the 2018 midterms, unheralded increases in subscriptions to national news providers, Twitter’s dramatic turnaround in new user growth, or even the fact that you’re reading this essay.
President Trump himself is of course both cause and symptom of this surge in interest, and his drive to fully politicize American life is merely one calling card of his authoritarian tendencies. As Matt Ford astutely put it in The New Republic last year, “[Trump’s] corrosive effect on American politics forces Americans to devote far more hours of their life to thinking about him than they should. All of this amounts to a tax of sorts on the national psyche—one that can never be repaid.”
But where America’s inability to look away from Trump imposes a psychological tax, there ought to be a way of channeling people’s proven capacity for interest in governing down more positive waterways. In particular, the lack of interest in local government has long been the bugbear of progressive-minded commentators. Quoted in Good Times earlier this year amid a book tour, Vox’s Ezra Klein inveighed against precisely this behavior: “A lot of the ways people participate in national politics is functionally following politics as a form of infotainment—even if it’s not very fun—versus being actually involved in a local community, which is about organizing, and it’s about making connections with neighbors”.
Even taking a national, federal-first lens, the 10th Amendment — ceding all powers not enumerated down to the state governments — guarantees a structure in which local governments have a greater impact on everyday life, owing to their greater remit. In the wake of the Trump administration’s abdication of responsibility for handling COVID-19, for example, it was state police powers that allowed the steps taken by governors nationwide to close businesses and enforce quarantines. It seems a lot of people were surprised by the sweeping powers exercised by governors in Albany, Annapolis, and Sacramento, and pleasantly so, perhaps because America’s belief in government doing anything right has fallen so low amid decades of polarized gridlock.
Indeed, state government has long been a more effective arena for advancing policy goals than the national government — nearly a century has passed since Louis Brandeis deemed the state governments “laboratories of democracy.” Recent praise has been laden upon the Virginia General Assembly for its progressive achievements, although it should be noted that it took major national attention — including the made-for-TV breaking of a tied election by straw-pulling — to get the Democrats the majority. Conversely, conservative powers have for decades made hay of local government’s lower media valence — the latest casualty has been trans rights in South Dakota, as legislators there have made a point of cracking down. More broadly, over the entire Obama presidency, the Democratic presence in state government fell to its lowest ebb since the Eisenhower administration — a loss of nearly 1000 seats in state legislatures nationwide, and a quarter of the nation’s governorships.
It’s clear amid both the public’s proven capacity for engagement with government and the states’ proven capacity for great accomplishments in government that a happy match can be made here for advancing left causes and, in particular, reforming policing. We need a new left federalism, a constitutional program for emphasizing state’s rights and an electoral one for voting in large majorities to expand the size of state government. A corollary of this push will be to shrink the size of national government, to work towards a retrenchment of federal rights and responsibilities (and thus, federal budgets), in the name of greater and more equally distributed justice. In a world of hyperpolarized parties, where the presidency is a more valuable prize than ever before, and where presidential focus is often turned more toward the dismantling of predecessor agendas than positive governance, this will come as no great loss.
Devolution is no new political thought, but it has long been a right-wing view, concomitant with the slashing of safety nets once programs of that ilk and others are placed under local control. In an article presaging the revolting glee with which Paul Ryan would later talk about cutting Medicaid, Richard P Nathan and Thomas L Gals at the Brookings Institution took a look, in 2001, at the question “Is Devolution Working?” Recall that Democrats under Bill Clinton, championing the neoliberal turn, worked with a resurgent Republican House (in the majority for the first time, practically, since the Hoover administration) to gut the New Deal’s welfare system. The Personal Responsibility and Work Opportunities Reconciliation Act of 1996 was a “devolution revolution,” responsible for “fundamentally [transforming] the roles of national, state, and local governments, as well as thousands of nonprofit and for-profit groups in the field of human services.”
In practice, it ended the program of the Department of Health and Human Services known as Aid to Families with Dependent Children (AFDC) and created a new program, Temporary Assistance for Needy Families (TANF). Where AFDC recipients got their support directly from the federal government, TANF instituted a block grant system whereby TANF recipients got their support from the government of whatever state they lived in. The federal government would then send money to the state in order to fund their TANF operations. In response to the passage of welfare reform, two higher-ups in Health and Human Services resigned, one calling the bill “the worst thing Bill Clinton has done”.
Brookings demurred: “If ending cash support without work requirements is the critical goal, then, YES, the new signaling and sanctions of the 1996 welfare reform act are working,” their report wrote.
If right devolutionism is a means towards hollowing out government, left devolutionism ought to be a program instead for strengthening government, making it more accountable and generous to its people. CityLab‘s Richard Florida, writing shortly after Trump’s inauguration, came to this conclusion: “No top-down, one-size-fits-all strategy can address the very different needs and desires of those who live in the dense, expensive blue-state cities and urban areas and those who live in more sprawling, car-oriented red-state suburbs and exurbs. Every place has its own set of unique needs, and these are very different kinds of places…Empowering cities, suburbs, and communities respects both our differences in values and our very different needs.”
What will the practical consequences of this new left devolutionism be for voters on the ground? It will mean reorganizing the energy devoted to elections — after all, an individual voter in the presidential election has, at best, a one in ten million chance of deciding the election. By contrast, in Alexandria Ocasio-Cortez’s primary win versus Joe Crowley, an election that generated a new Democratic star and shook New York politics to the foundations, 27,744 people voted.
Federal elections are one thing, but the only way to fill state legislatures with the left voices needed to build a more generous and just state is to vote them in. This will not take place so long as the average municipal election draws just 27% of voters.
And beyond fights for legislative seats, the scurrilous map of local elections decides the people who shape the criminal justice system more than anyone else. This year, more than 2,300 prosecutors and sheriffs will be elected. These critical contests often go, in fact, uncontested, like in DuPage County, IL, where State’s Attorney Bob Berlin runs the prosecutor’s office in the state’s second most populous county. Berlin will face neither Democratic nor Republican opposition in his reelection bid this year. He will extend by four more years his reign over the prosecutorial fates of the county’s 922,000 residents, meaning, if he retires in 2024, that he’ll have held the job for fourteen years straight.
The cause of equal justice for Black people and other people of color cannot abide a nation of Bob Berlins, uncontested in their fiefdoms. Entitlement is a hallmark of the abuse of power, but it is only by our failing to act that such entitlement is bred among the officials of our districts, cities, counties and states. We need to pull our attention away from Pennsylvania Avenue catfights and back down onto municipal, quotidian concerns. We need rezoning to build the housing so desperately needed, shade to keep the urban people of a warming earth from boiling alive, investment to buttress the walls of failing schools, and maybe even cash to pay police to provide the sense of safety we decide we want for our streets. We need to once more emulate the Americans of days past, who considered themselves citizens of their states first, and of the United States second, not to sow regional division, but rather to ensure the full payment of due attention to the governmental forces that shape each one of our daily lives.