Continuing the discussion of criminal justice in the US begins with an acknowledgement that it ain’t working for anybody. No one in the country feels safe. Conservatives are expert at exploiting that fear while reinforcing it with false narratives about immigrant caravans, antifa, socialism, BLM and Black riots. The specter of Black bodies is a deeply ingrained contrivance to elicit fear among the general population. At the same time, they dispute the real threat that is the rapidly expanding organization of violent and armed white nationalists/supremacists who are encouraged, supported by and intimately tied to elected Republican officials.  

Leaving aside the larger question of national security, how can current threats to personal safety like thieves, rapists, murderers and for nonwhites, law enforcement itself, be addressed? The obstacles to change sit squarely in the leadership of law enforcement and the justice system itself. That resistance will intensify as those in political power feel increasingly threatened by widening public sentiment for change. Among the most important are police unions. Union leaders are steeped in the traditions of a privileged, unaccountable force that imagines itself fighting for their lives against a heavily armed public. They uphold the thin blue line as a matter of principle handed down generationally through police families. Union and affiliated organizational memberships are often dominated by retirees, not active duty officers. In addition, their ranks are drawn from some of the most ferocious proponents of anti-Black racism, handed down at their family dinner tables.  And they are deeply entrenched in the MAGA universe. They have built a fortress around law enforcement, a steel wall against a view inside; an exemption from the normal procedures for investigation of suspects and legal disclosures to prosecutors.

Provisions negotiated within union contracts include a prohibition against officer firing, no matter the malfeasance; an appeals process that typically reverses most officer disciplinary actions and terminations; leave with pay during investigations; internal reviews conducted by departments themselves that generally find no wrongdoing. During investigations, many officers can’t be questioned by prosecutors for weeks, not hours like civilians, opportunities for co-conspirators to “clean up” their stories, encouraged by their union reps. Under the contract in Louisville, former home of Breonna Taylor, no officer can be fired during the duration of the contract. Another recent example is the officer who shot Rayshard Brooks in an Atlanta fast food restaurant parking lot. Despite pending prosecution, he was recently reinstated to the police force because the appropriate waiting period was not observed before his firing. At least, he’ll be on administrative duty although it’s questionable if that’s an appropriate use of tax funds.

Police unions are powerful enough to influence state legislatures to act to protect them. In 22 states, police have a bill of rights which protects them from accountability for their actions. Many limit the ability of civilian police oversight boards to review police misconduct and augmented by police contracts, allow their unions or a police chief to overrule disciplinary actions recommended by those boards. All of that is in addition to qualified immunity.

Beyond the unions, the culture of policing is another significant concern. Police union officials have been overheard making anti-Black slurs and expressing common racist tropes. These attitudes percolate throughout an atmosphere of officer fear. As detailed by Michael Sierra-Arevalo in a podcast, the culture is built around the canon that the officer’s safety is paramount above all else. This leads to paranoia on the street where every situation is dangerous to them personally. Infused into a military training regimen that draws heavily on military tactics, what Sierra-Arevalo has called the “danger imperative”, allows police to defend everything about their every action. Their “us against them” (them implicitly dark-skinned people) perspective is reinforced by their everyday routines that bring them overwhelmingly in contact with people of color. Those hostile interactions generate hostile reactions to officers’ animosity and disrespect in the people they encounter. Officers’ experiences reinforce implicit biases that intermingle with racial stereotypes to further reinforce their biases. To be clear, there are dangerous criminals out there, but not every Black person is dangerous or a criminal. Most 13 year old boys and 30 year old men and 60 year old women are just regular folks, minding their own business. But, in the stereotypical perception of the policing world constructed from the idea that most crimes are committed by descendants of the enslaved, they are all potential criminals. Stalking African Americans wherever they are, in consequence, is the heart of crime prevention in the minds of law enforcement officers. 

 The specter of gun ownership looms over it all. Total US gun ownership is 4 times the adult population. But far more guns are in the hands of white people than African Americans; that’s a no brainer when in 2020, whites make up 60% of the population. In reality, a white suspect is far more likely to be armed than a person of color. And yet, every Black person is probably armed is the idea in these officers’ heads. And cops aren’t stopping white folks often enough to think about them. 

The danger imperative is enhanced by rituals around officers killed in the line of duty. Word spreads quickly when any officer from around the country is injured, whether in car accidents or shootings. Officers travel across the country to attend funerals; national police auxiliaries plan and coordinate funeral arrangements swooping the family up in their vision of the pomp and circumstance. (I’ve had some tangential personal experience in that atmosphere of bullying.) Memorial walls of badges and plaques in departments which stand as reminders of potential dangers before each shift, reinforce this obsession with loss and spread an overarching sense of doom. This is not to say that there is anything wrong per se in honoring friends and colleagues.  

Almost all officers claim that when they’re involved in a shooting, they feared for their life. The fact is they’re scared when they walk out of the station door. This is why they empty excessive numbers of rounds into their victims. Even in the heat of the moment, 2 officers armed with tasers and guns should feel their physical superiority over a suspect armed with a knife running away from them. After all, they are trained to handle these situations. Unfortunately, their training seems to boil down to just shoot ‘em. The standard justification for excessive use of force, fear, is simply the outlook that officers have toward their job and the population they police. The danger imperative is the blank check that underwrites excessive use of force against people of color and their murder. In contrast, law enforcement’s attitude toward whites lacks that same element of fear, no better demonstrated than by its response to the January 6th gang. Authorities were lulled into a sense of safety by the commonality of their skin color. Despite the potential for violence, they failed to prepare. Despite the presence of weapons and the mob’s violent behavior, seditionists were simply released to mill about the streets after the attack was repelled. No excessive use of force there.

The culture of policing also inculcates a tendency to deceive the public in an effort to avoid accountability. Both police officials and prosecutors seem to instinctively falsify their reports and statements about use of force, particularly in cases that result in an injury or death. The incident reports on Breonna Taylor for example were mostly blank without reporting a death from gunshot wounds. The initial statements by police officials and the prosecutor about George Floyd said that there had been a medical emergency and the suspect had died at the hospital. No mention of knees on his neck as the cause of the emergency nor death at the scene while being restrained. The officers must have falsified their reports, even though the whole world would soon see the video of Floyd’s execution. 

The practice of half truthful paperwork appears to be widespread, as departments routinely delay public release of body cam footage or fail to disclose incidents until a bystander or family releases their video or talks to the press. This suggests that officers have some sense that they are behaving badly. The most common officer reaction to most incidents, viewed through the danger imperative prism, is to affirm the appropriateness of any action as a necessity. They take for granted that it will be unpopular with people of color and their sympathisers but believe that the general public will agree. The impulse to cover up comes from a desire to avoid media attention and debate. Their instinct is to draw up the gate to their heavily fortified law enforcement castle, ensuring that all of them are protected against the legal consequences of their missteps. 

In service of the goal of obfuscation, data collection on officer misconduct is strictly controlled by police departments and reinforced through union contracts. Some contracts mandate destruction of complaints and disciplinary records after specified time periods, often 5 years. Over a 10 year career, an officer has 2 chances at a clean slate, leaving them free to employ excessive force with impunity. The only way to gain transparency in law enforcement is the creation of a national database of officer conduct. Police departments need access to hard data about potential hires if they want to avoid officers who either are “bad apples” or have the potential to become one. Their ilk should be eliminated from law enforcement ranks rather than passed around like abusive Catholic priests between parishes. Accountability theoretically becomes a deterrent to bad behavior particularly if the database is open to the public or at least subject to open record investigations.

Whatever the consequences for employment, officers generally pay no legal consequences for killing or injuring suspects. Qualified immunity protects them from prosecution for most activities, another gift of police union lobbying with Congress and state legislatures. Instead, the American public pays for police misconduct. Our tax dollars pay for settlements like Breonna Taylor’s family received, remembering that federal grant dollars supplement local police and municipal budgets. Ironically, Black Americans are paying for being killed in the street in the few cases where civil settlements have been reached. But plenty of that moolah is coming from white, Latinx and Asian taxpayers too. Part of our discussion should include whether taxes should be spent on protecting police officers or on resources that would ameliorate the circumstances that lead to crime in long ignored communities. Perhaps the prospect of exorbitant legal fees and settlements could alter police conduct as well as send officers inclined to work in unconstitutional ways into alternative occupations, maybe security guard or private eye. 

Closely intertwined with the culture of policing is officer training. In a piece in the Atlantic, Olga Khazan points out that some European countries have 4 year police academies which teach the country’s rationale for their justice and legal systems. In contrast, the average training period in the US is about five months in a classroom and another three or so months in the field. Among the 18,000 law enforcement agencies in the US, including 1000 departments with only one person, training is whatever the agency decides. In one or two man departments, there is no training at all; just a do-as-I-do apprenticeship where the officer may have no experience in law enforcement or the body of jurisdictional law. There are no national standards for best practices and procedures. 

The bulk of the training curriculum revolves around military drills and tactics. The emphasis on military discipline has created a paramilitary force, outside the rule of law. From the first day, the armed forces break down a civilian identity to refashion recruits into a cog in a corps, without individual will. A strict hierarchy is welded into place where the soldier must follow a superior’s commands without question or thought. In battle, their life depends on it. The military has its own laws with its own police and court system outside the national system. For the purposes of defense, society has chosen to create an armed force that operates only outside its own soil, except against Native American tribes and in the Civil War, before there was a standing army. But the price for society is an armed body of persons who are outside the rule of law. And when they leave the service, they bring that lawlessness with them to join a body of civilians trained in military maneuvers with the potential to accumulate an armory of automatic weapons.

Police training replicates that microcosm. Law enforcement sees itself as its own uniformed corps, rules and loyalty codes where a superior officer is a god. In this structure, where questioning a superior is unlikely and reporting one is almost unheard of, a ring of collusion encomposes every person present at an incident and all who discuss it later. They have their own rules of engagement and think their intra-organizational regulations replace federal and state laws, much like the armed services. In parallel, law enforcement glorifies dead officers as fallen heroes defending their country. But they are not at war. They’re trained to believe that they are, but preventing or solving crime is not war. There is no identifiable enemy, only criminal acts, not people or identifiable organizations or countries.

 Following graduation, training updates concentrate in that area as well. Where departments have included implicit racial bias training and de-escalation techniques, these are often one shot engagements or sometimes on line and even when repeated, account for less than 10% of training time. Surprisingly, even firearms evaluations have become less frequent as departments have become more budgetarily strapped. Absent from most law enforcement training is education in federal, state and local laws, keeping in mind that they change every time state legislatures and city councils meet. Nor are the fundamentals of the legal system, including constitutional protections, being taught routinely or being reviewed periodically. This was demonstrated by the Justice Department report on the Baltimore PD at the end of the Obama administration. The report details a Justice Department ride-along where a police sergeant instructs his partner to stop and search a group of Black men on a street corner doing nothing. The sergeant’s response to the question, “What for?” was “make something up”. So ingrained was the police practice that the sergeant didn’t even realize that those actions are constitutionally unlawful search and seizure performed in front of DOJ officials! 

Mimicking the military, law enforcement has tried to create a parallel separate tract nestled within the justice system using the interdependence between the police, prosecutors and judges. In an overcrowded system that is driven by the number of convictions it can achieve, crime solvers have influenced prosecutors and judges to accept their word as truth even when they all know it’s not quite kosher. These cozy relationships are threatened if prosecutors pursue legal action against policemen. Restricted access to court proceedings and a general lack of interest by the public allows the court system to rumble along in its own realm. Plea bargains, the most common resolution of legal proceedings, mean that evidence is never presented in court. Over the years, the judicial process has trapped millions of victims, many of whom are innocent, out of sight of the general public. 

A public safety doctrine with its current emphasis on crime prevention through an assault on minority communities has left those communities unsafe. Calling the police invites in the very people who are stopping and frisking youth for no reason. Does someone with a warrant out for nonpayment of parking tickets call the police when they’re mugged? The police are likely to make the situation worse possibly leading to a confrontation over an outstanding warrant; at the same time, they are unlikely to recover the cash, cards and stolen goods. It’s far more reasonable to go to the ER to treat injuries if severe. A Post Reports podcast retells the story of a woman living in Albuquerque who called the police to check on her father at his home. When the police arrived, they discovered he had an outstanding warrant and when he resisted arrest, they shot him because he raised a shovel over his head. A daughter’s concern for her father resulted in his death at the hands of the police. The fact that there is nowhere else to turn is also illustrated by a bystander to George Floyd’s murder who called 911 to report Chauvin to the police. He was hoping that they would come and stop their colleague from murder. Phillip Goff of the Center for Policing Equity has researched how changing police tactics like minor traffic infractions stops can make African Americans safer. And just as importantly, those departments were willing to listen and change their procedures. So there are remedies when law enforcement accepts alternative approaches to current tactics.

 In the wake of BLM demonstrations and the action by some mayors to discipline officers for misconduct, officers are abandoning their jobs in droves. Police departments, particularly urban ones, are reporting manpower shortages and difficulty recruiting. Whether the officers who quit are disturbed by a loss of privilege and immunity is unclear. The demand from the public to examine police actions and have some role in oversight, particularly in urban departments, is receiving some attention from mayors and that may be making some officers nervous that their past and present behaviors will catch up with them.  

The intense national focus on police has also decreased recruitment and may be skewing the types of recruits who are stepping up. Multiple incidents of racial antagonism from officers have been documented across multiple locations. The events of January 6 have revealed that there is a significant strain of anti-democracy within law enforcement who turned out in some numbers to the Stop the Steal rally and assault on the Capitol. Within the crowd were many who expressed anti-Black prejudice, as detailed by the Capitol Hill police who testified that they were assailed with the n-word. How many of those people were from law enforcement will never be known, but birds of a feather typically flock together. 

Another example is one of the assailants of Ahmaud Arbery, a former policeman, is rumored to have said, after he shot him, that he got Ahmaud, referring to him using a derogatory racial epithet. 

Former military personnel are a significant source of recruitment for law enforcement. Recent investigations have also exposed a significant number of white supremacists within their ranks, a problem that the Joint Chiefs and the Secretary of Defense are now attempting to address. Recently, an active duty soldier and a National Guardsman have been indicted for actions on January 6. Former military personnel form a central core of white supremacists militias, some of whom also participated in the January 6 insurrection.

The real difficult areas to cleanse of racial prejudice are the smaller, nonmetropolitan departments, particularly sheriffs of the sort like Arpaio in Arizona. Since the former president, these officers have been seen wearing MAGA hats, Qanon symbols and decals, white nationalist symbols and of course confederate flags without compunction. And these may be areas, given the preponderance of political identifications within them, to recruit officers who don’t hold these beliefs. 

These findings should set the stage to reevaluate what type of people make good law enforcement officers. A disturbing report from Atlanta showed that 93% of their potential recruits were unable to complete the application correctly and only about 1% of candidates were accepted. The authorities decided to change the packet rather than consider what the problems were for those who couldn’t complete it, seemingly a step backward rather than forward. 

Recruitment must screen out both the white supremacists and those who disparage people of color and fire those whose service is marred by these ideologies. Consideration should be given to attitudes of former military personnel and examination of their records before they’re hired. But police leadership and unions, mired in their culture of hostility, can’t be expected to spearhead these changes. Perhaps the new approach to DOJ investigations of police departments initiated by Merritt Garland will bring some new perspectives. However, the DOJ doesn’t have the resources to consider 18,000 departments even though it may be able to make a dent in large and moderate sized urban areas. 

There is some evidence that women tend to be more respectful and are more likely to de-escalate interactions. In concert with an effort to demilitarize police interactions and parcel out functions that can be performed without weapons, recruitment of more women and their promotion up through the ranks must be increased. The British police force which has long incorporated and promoted women to leadership positions is a potential example. 

The difficulty in deciding criteria for officers without a clearer societal understanding of a proper approach to policing and desired law enforcement functions is self-evident. But the undesirable has been well defined. And changes in who is doing the policing can occur as various locations modify their law enforcement agencies. After all, police continue to kill individuals daily, at what feels like an even more hectic pace. 

On the other hand, the recent surge of crime during the COVID19 pandemic has created a public demand for more intense policing rather than less. In this atmosphere, law enforcement agencies are likely to relax their recruitment requirements rather than reexamine and strengthen them. Politicians are more likely to be reactive rather than imaginative and to use public demand as an excuse to double down on current police tactics, particularly in jurisdictions where GOP politics reign. But the length of the process should not be an excuse for failing to start it. 

Perhaps the biggest obstacle to a discussion about the philosophy of policing in the US is the refusal of some people to engage in it at all. In our post-truth atmosphere, and actually around the globe, denial is the signature core of the conservative mediasphere and the MAGA cult. Their spokespersons are masters of creative reconstructions of history and current events which, through constant repetition and reinforcement, have fabricated a parallel universe. There is no better example than Tim Scott, the GOP’s puppet in Black skin. Even as he has detailed some of his encounters with racial profiling by police, some with the Capitol police no less, he towed the party line in his response to Biden’s first joint address before Congress. America is not a racist country he said, a statement that can only be said by someone completely ignorant of history who also refuses to look at his own personal experience in context. Doesn’t he recognize the commonality of his experience with Cory Booker, even though the latter is very light skinned? He might like GOP economic policies but a tour through his state is the best demonstration that they are not intended to meet the needs of people who look like him despite decades with them in place. Is there not something systemic about the centrality of skin color in the lives of nonwhites? Doesn’t he get tired of people who look like him being scapegoated by his party? He’s traded his common sense for a GOP Senate seat. 

It’s not that Scott’s missing an interpretation of history; it’s written in the policies and the documents of the very people who designed them. Their own words state their intentions. The purveyors of America’s myths about itself can easily be identified by anyone who can read. The path from the Civil War through White Redemption to the Lost Cause can be charted through the Daughters of the Confederacy. It’s all there unless your business is denial in order to thwart the threat of the masses to displace the people in power. Those people require that the majority of Americans remain deceived about the forces that control governance, the wealthiest and most powerful few. The powerful rarely concede power willingly and they have the resources to put down most attempts. Doesn’t Scott understand that he only has a seat at the GOP table as long as he is useful to them. They’ll ditch him as quickly as the former president turned on Michael Cohen. 

In the face of an upsurge in the demand for a more just criminal justice system and system of policing, Tim Scott will be the face of the conservative attempt at the federal level. He will try to win the public over to the slicing and dicing of the George Floyd Criminal Justice bill. GOP compromises are aimed at nibbling around the edges of true change to give the appearance that some progress is being made and then trot out the idea from Voltaire, “don’t let the perfect be the enemy of the good”. 

And the federal response is unlikely to make a dent at the local level where every individual officer operates on his recognizance. The department can be sued, but the victim will still be dead and their family will still mourn. One point that Scott has said is immutable is the maintenance of qualified immunity which creates an accountability bubble for officers that is a powerful counterweight to policy and behavioral change. The result will be more Black children, women and men dying at the hands of the police.

Because this will be a struggle against the powers that be, it will be long and bloody. At this point, they hold all the cards: the government, the media, the institutions, the Congress, the economy. The presence of agents of subversion in the House and Senate has never happened in our history. Even on the verge of the Civil War, the secessionists in Congress supported the institutions and accepted the votes that went against them. They admired the structures enough to replicate them in the Confederate States of America.  

It will take a generalized revolutionary movement of the maybe 60% of the population that wants to retain the democratic structures that exist, however flawed, to rise up. They must battle against the opposition of the hard kernel of throwback supporters whose destination is something that never existed in the past, only as a mirage conjured up by the powerful to mesmerize them. The 2020 Census makes continued GOP domination of governmental structures almost a certainty as they exclude more and more of the electorate from access to the ballot and redraw districts to allow candidates to hand pick their electorate to maintain permanent seats. Whether the former president continues to be their mascot or someone else captures center stage, they are well positioned to quash organizational efforts of a majority of the country still invested in maintaining our imperfect democracy. Far fewer are invested in the fight to make the society truly democratic. Even though the republic was designed for lily white men, it’s been updated to encompass white women while we continue to fight over people of color, youths, the poor and non-cis gendered individuals with halting progress toward more inclusion and giant steps back to expulsion. But lukewarm odds of success should not be a deterrent to persistence in the fight. It’s life or death for the first democratic republic in history. 

On May 17, 1954, U.S. Supreme Court rules in Brown v Board of Education that racial segregation in public schools is unconstitutional, sparking massive white resistance and violence.