A few days ago, I sat in the parking lot of a low rent, low-end apartment building in South Norfolk, Virginia with a sheriff while waiting for a locksmith to arrive to help perform an eviction. I know this officer, I work with him regularly. He works the precincts that a number of my client’s properties are located in. He and I have met many times in the past and, in a sense, could be considered colleagues. While we sat, waiting for the locksmith to arrive, we talked. You know what we talked about? We talked about the neighborhoods. We talked about how the areas we work tend to have a lower average household income than Ferguson, MO. They are areas with statistically higher crime rates, higher poverty rates, and higher proportions of minorities than others. They tend to be older areas where historical districts and zoning laws have created an impenetrable patchwork of bureaucratic legalism that make it almost impossible to redevelop. They trap impoverished families in decaying houses that can’t be bulldozed (unless you don’t pay your taxes and the city comes in and takes it back).
We talked about his job; we talked about which other rental companies are doing business in the area and where the warrants are going. We talked about how you can’t police enough to fix underlying social and economic problems. Officers know the drug war is unwinnable, they know prostitution can’t be stopped. It’s all on backpage and craigslist, hell, they know most property crime such as vandalism isn’t worth the man hours to try to track down. You know what they care about? Serving a warrant, making sure some guy doesn’t slap around his girlfriend again, or light up his ex brother-in-law over an argument, and at the end of the day, going home. They care about things that matter, things that have consequences, which really shouldn’t be a surprise to anyone.
Popular perception of police falls somewhere between the rosy belief that officers are the line between order and chaos, a romanticized view informed by the show Cops, or Blue Bloods of officers chasing down suspects and always getting the “bad guys.” Reality is far less dramatic, is far less romantic. Reality is mundane; most of what happens in the line of duty is almost perfunctory. Reality is paperwork, warrants, driving around, handing out speeding tickets and parking tickets. By and large, most police officers will not be involved in a serious altercation with a rowdy or unruly individual. By and large, most police officers will not be injured or killed in the line of duty. What this all amounts to is a way of saying to those that have clothed themselves in the belief of the thin blue line have an unrealistic perception of what policing really looks like. Policing, as a profession of choice, lends no real justification for the existing legal double standard. There is not a compelling case that a legal exception should exist for officers such as Pantaleo or Wilson and that they shouldn’t be indicted on charges that, reasonably speaking, would be filed against any other person.
As it exists, the present Grand Jury and District Attorney system has a built-in incentive not to indict or prosecute officers. District attorneys tend to rely on police departments for evidence and collaborate with detectives and officers to build their cases. Incentives matter; there is no getting around that. These incentives create situations that can be exploited, especially in cases where it is clear some legal wrongdoing has occurred, those incentives need to be revisited and changed. Officers are also faced with many rules and laws they are expected to follow, not all of which make their jobs easier. Many of the methods used by law enforcement to enforce the Drug War such as the use of SWAT teams to serve warrants, asset forfeiture, place officers in contention with the communities they are intended to police. The more contentious, or seemingly unjust, a law is, the less popular and less effective its enforcement is in the long run.
Politicians build unwieldy legal frameworks and then expect law enforcement to accomplish the impossible; to balance a collaborative, constructive presence in communities, while simultaneously trying to enforce laws that are both unpopular and nearly impossible to entirely enforce. For instance, by their nature asset forfeiture (which frequently rewards police departments for seizing private property, without trial) and the 1033 weapons program (which transfers ex-military gear to local police departments) incentivize aggressive policing tactics that drive a wedge between communities and police that only serve in the long run to make police officer’s jobs more difficult and communities less inclined to support them and their efforts.
The recent outraged reaction of communities to public abuses of power serves well to communicate this distrust. It communicates an erosion of the tenuous and frequently difficult relationship between officers and communities. They are symptoms of a deeper defect in our judicial system. As Bonnie Kristan with the American Conservative has written, the problems are multi-faceted, but specifically, in bullet point number 3, she identifies that the consequences of police misconduct are minimal. As she writes:
“In central New Jersey, for instance, 99 percent of police brutality complaints are never investigated. Nor can that be explained away as stereotypical New Jersey corruption. Only one out of every three accused cops are convicted nationwide, while the conviction rate for civilians is literally double that. In Chicago, the numbers are even more skewed: There were 10,000 abuse complaints filed against the Chicago PD between 2002 and 2004, and just 19 of them ”resulted in meaningful disciplinary action.” On a national level, upwards of 95 percent of police misconduct cases referred for federal prosecution are declined by prosecutors because, as reported in USA Today, juries “are conditioned to believe cops, and victims’ credibility is often challenged.” Failure to remedy this police/civilian double standard cultivates an abuse-friendly legal environment.”
Radley Balko, in his recent Washington Post article, identifies specifically in the Garner case that instances of excessive force and police that are the subject of frequent complaints are rarely punished. As he writes:
“The cop in question in the Garner case, Daniel Pantaleo, had twice been sued for violating a citizen’s constitutional rights. One lawsuit accused Pantaleo and other officers of illegally pulling over a car, falsely claiming to have found crack and forcing the car’s occupants to strip nude, squat, and cough. The city settled that lawsuit for $30,000. The other lawsuit is still pending. It accuses Pantaleo of misstating facts about a marijuana arrest in a case where there charges were later dismissed.”
This illustrates the point I’m trying to make. It is that rationally one cannot accept on face value the justifications offered in police’s defense of every allegation of misconduct. There is no reliable public legal framework within which these complaints are evaluated. In the absence of public review, one cannot draw conclusions that police are either unjustly and abusively predisposed to taking advantage of the law, nor are they generally justified in the actions they take which trigger complaints. There remains in this absence an epistemic uncertainty. We cannot draw conclusions when data is not meaningful, or when a system designed to produce data (such as judicial systems, which determine guilt, i.e. causal relationships between behavior and consequences) don’t function. Arguing the point that because the notoriously opaque system of internal review finds no wrongdoing, that there is no wrongdoing is an argumentative fallacy; it supposes no misconduct exists by those with an incentive not to find any. As Frank Miller’s titulature comic “The Watchmen” asks “Who Watches the Watchmen?” With the current system you and I, communities, indeed, even police, are left in a position where we cannot systematically make effective distinctions between just and unjust laws and the consequences of them. Something must be done.
The most compelling argument in this case circles back to the nature of policing itself. Police are people too, they are just like you and I, common, normal citizens. They are placed in a position, frequently by bad laws and perverse incentives, to come into conflict with communities. If people, and communities feel threatened because laws are perceived as unfairly or arbitrarily enforced, and those that enforce them when faced with the same allegations are handled preferentially by the legal system, those perceptions of the system lead to a gulf in the dialog between larger and larger cleaves of society. Law enforcement knows this at an intellectual level. Since we expect to live in a civil society with some expectation of peace, policing policies and legal systems must calibrate themselves to the interests of justice and the tolerance of laws. If these problems are not corrected the extremity of beliefs and actions in these interactions threaten to compound and lead to a perpetuation of violence through rioting, which can lead to aggressive policing and the long term breakdown of civil systems.
At stake at this juncture is a far more fundamental underpinning of civilization. The pattern of our history as described by Deirdre Mccloskey in her book “Bourgeoisie Virtues” is a history checkered with a fundamental tension between the encroachment of the state, first via the monarchical systems and later with the advent of democratic ones into the realm of individual and economic rights. Indeed, as we take a broader view of our historical circumstances, the concepts that underpin the material and social success of modern human society is a product of virtuous beliefs that include the concept of human dignity and a recognition that autonomy allows us to more fully identify and build the vision of our futures, which taken together is a shared one. The roots of our legal system lay in a hard fought philosophical equalization of the power of the individual with that of the state. In the deep traditions of the Anglo-Saxon common law, from which most modern American law is derived, we see the slow, gradual, establishment of the presumption of innocence, equal standing before the law, and limits on the policing power of the state.
In short, for our society to function in a fashion consistent with the processes that have empowered and rewarded the growth of human society we must not abandon ourselves to the power of fear based, reactive, poorly rationalized systems of command and control. We cannot assume we exist merely to be ruled. As Martin Luther King Jr wrote, while paraphrasing St Augustine in his letter from Birmingham Jail:
“There are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
It is, in a sense, given that the drug war creates unjust and perverse consequences. The consequences of these kinds of policy condemn large swaths of society to an ineffective incarceration process, and it has given cause to undermine our basic legal protections such as due process and equal standing. Henry David Thoreau observed a similar point in his essay on Civil Disobedience.
“After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule, is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? — in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right.”
What this means is that man is not compelled solely on the basis of law to submit before laws if in the course of the laws enforcement or as a consequence of its effectuation we are obligated to immoral actions. Our moral conscience, dignity of self, and common reasoning are important and necessary faculties which justify non-compliance with laws if they contradict those concepts. Overreaching and badly thought out laws create perverse incentives for bad policing practices in our communities; it erodes the basic processes necessary for civil societies to continue to exist.
Conservatives will be uncomfortable with that proposition, as well they should. Logically, it follows that if laws cannot be equally and fairly enforced than the authority of that law is undermined. Indeed we can draw one of two general conclusions; 1.) That most laws, since in the abstract cannot be justified by ends, do not actually bind us and therefore should and can be disregarded or, 2.) that most laws because they cannot be fairly or generally enforced are not good laws because they create an unsustainable burden on a legal system, or, require a more fundamental violation of a morality such as fairness (due process). Where this leaves us is admittedly vague, these two points taken together essentially conclude that most laws should not be taken seriously because they can’t be taken seriously. The duty to enforce the laws of the state, and by extension it’s courts, by the police becomes selective and must become selective because it cannot satisfy both fairness and usefulness of outcomes, and is therefore left subject to the bias of its agents. Laws must be clarified and eliminated where unnecessary. The classic conservative claim that we should submit before the law to preserve it is not a useful criterion for all instances of interaction because not all laws are equally enforceable or useful in practice.
So what is to be done?
Well, to be clear, I’d rather most police officers make it home to their families and are able to share in enjoying our civil society. I want neighbors and neighborhoods to share social and civic bonds. My friend the Sheriff friend should not fear for his job doing what he mostly spends his day doing; serving warrants, making sure that domestic abuses don’t get out of hand, trying to track down crimes such as vandalism, larceny and violence. I want them to enjoy vacation once a year. I want them and their families to enjoy a peaceful status within our largely peaceful society. I don’t want them to be called pigs; I don’t want them in riot gear or with M-16s pointed at demonstrators or protestors. I don’t want them in MRAPS in small rural communities like Currituck County, North Carolina. What we need is a resetting of what we expect police officers to do, we need to limit if not eliminate the scope of the drug war. We need to end the 1033 weapons program that arms departments with ex-military gear. We need to eliminate capricious and ineffectual laws like restrictions on selling loose cigarettes. Finally, we must have a judicial system and a law enforcement system that is willing and capable of prosecuting police officers when they break basic laws, like kill civilians.
What is needed is to establish an independent private petition office for the prosecution of criminal charges. We need a system that creates an alternative path around that of the existing grand jury process that allows direction solicitation of courts by private parties. To prevent abuse of a direct solicitation system, parties that file criminal charges through a solicitor general can be required to post a bond to cover the cost of the prosecution, unsuccessful prosecutions result in the petitioner then becoming responsible for the cost of prosecution. A consequence of such a system would be cases with a vast popular base that fail to indict (such as the Pantaleo case) can be directly prosecuted and people can distribute the cost of the bond across a variety of petitioners. Other less creative solutions might include the appointment of special prosecutors on a case by case basis with special emphasis for cases involving police shootings. Special prosecutors (instead of regular DA’s) that work with police departments would, at the minimum, introduce distance between the prosecution and the accused, alleviating the risk of a conflict of interest. Regardless of either of the paths, it is clear some institutional change needs to take place to prevent the kind of riotous violence, threats to officers, and improve the general peacefulness of our communities. The time for this conversation is now.
December 10, 2014
Tom Thrasher | TCC magazine
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