Monday Morning Thoughts: Police Reform at Critical Crossroads

Last week there was another critical incident – a man crossing the street in Sacramento was confronted by a police officer, there was a confrontation and the police officer was caught on video taking the man down and repeatedly punching him in the face.

Unlike many previous incidents where the Sacramento police looked the other way – as officers attempted to run over Joseph Mann, and ridiculed and denigrated Dazion Flenaugh – Sac PD could not defend this one.

They issued a statement, “The actions of the involved Sacramento Police Officer are disturbing and [do] not appear to be reasonable based upon the circumstances.”

Increasingly, police chiefs and leaders in the police community recognize the need to change the way things have occurred, but there is a divide, with most rank and file police and their representatives opposing reform.

Under the waning years of the Obama administration, the President himself and the DOJ were increasingly active in pushing for reforms.

Some of these have come in the form of consent decrees.  Even supporters of consent decrees acknowledge they have a mixed record of success, but Cornell Law Professor Joseph Margulies points out, “Although these decrees vary in their particulars, a number identified a systematic and persistent abuse by law enforcement of the power to stop, frisk, and arrest members of the public.”

The recent decree where agreement was reached with the Baltimore Police Department came after the DOJ found a “legacy of zero tolerance enforcement,” which led to a chronic pattern of unconstitutional stops, searches, and arrests.

While we can still debate the precipitating incident for the DOJ’s report on Ferguson, the findings are unavoidable.  Investigators determined that in “nearly every aspect of Ferguson’s law enforcement system,” African Americans are impacted a severely disproportionate amount of the time.

“Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs,” they write.  “Ferguson’s own data establish clear racial disparities that adversely impact African Americans.”

The report in Chicago is equally devastating, “There are too many neighborhoods in Chicago that are devastated by crime and abject poverty. In those areas, aside from a recommitment to investments in jobs, education and many other important community anchors, those residents need the protection of the police. However, CPD’s own data and other information strongly suggests that CPD’s response to the violence is not sufficiently imbued with Constitutional policing tactics and is also comparatively void of actual procedural and restorative justice in the day-to-day encounters between the police and citizens.”

The report concludes, “CPD’s own data gives validity to the widely held belief the police have no regard for the sanctity of life when it comes to people of color.”

They add, “Stopped without justification, verbally and physically abused, and in some instances arrested, and then detained without counsel—that is what we heard about over and over again.”

But, with the new administration, these reform efforts are in question.  Professor Margulies notes, “Unfortunately, Sessions is a big fan of saturation strategies like Broken Windows and Zero Tolerance.”

Sessions criticized the Baltimore decree for its departure from “many proven principles of good policing.”

Last month, Mr. Sessions issued a two-page memo where he ordered the deputy and associate attorneys general to review of “all [Justice] Department activities,” including “grant making,” technical assistance, and training.

This would include consent decrees.

The good news – I suppose – is that once the decree has been issued by a federal judge, it would be difficult for the DOJ to dismantle it – especially since most of the jurisdictions have undertaken these willingly and with an eye toward reform.

The Baltimore consent decree was enacted over Mr. Sessions’ objections.

But, as Radley Balko pointed out in a recent column, “even if Sessions’s reviews doesn’t touch the consent decrees already in place, he has already promised to end the most important policies associated with them.”

As he pointed out, “Often, the most important part of a consent decree isn’t the decree itself but the investigation and report that lead to it. The Justice Department reports on police abuse in Chicago, Baltimore, Ferguson and Cleveland weren’t just damning and outrageous, they gave voice to what minority communities in those cities have been saying for years. They created a record. They legitimized the abuses of marginalized people who never had the platform to be heard.”

Mr. Balko also pointed out that the DOJ had acted as an agency that could “monitor and oversee police officers and prosecutors.”  He said, “We need an agency to ‘watch the watchers.’ That’s a healthy thing in a democracy.”

Moreover, in a piece in the Marshall Project, longtime Justice Department police investigator Christy Lopez wrote about another benefit of these programs — “the idea that they can establish a model for good policing.”

She writes, “Consent decrees also serve as both beacons and touchstones that instigate broad positive change throughout policing. That’s crucial in a nation with more than 15,000 state and local law enforcement agencies — and only about 70 Department of Justice pattern-or-practice investigations in 20-plus years . . .”

She adds, “Justice Department police consent decrees, created with input from national police experts, local police officers and interested community members (and affirmed by local legislatures) inspire the creation of best practices that can be implemented to restore police legitimacy and avoid the tragic incidents that have roiled too many communities the past several years.”

More than anything, what we could lose is the kind of critical report in Ferguson, Chicago and Baltimore, and the federal government pushing for the creation of best practices that can help bring communities together with their police forces.

—David M. Greenwald reporting