Attorney General Jeff Sessions released a memo yesterday that “ordered federal prosecutors ... to pursue the toughest possible charges and sentences against crime suspects, reversing Obama administration efforts to ease penalties for some nonviolent drug violations,” the New York Times reported. When Sessions was a “federal prosector in southern Alabama in the 1980s to early ‘90s,” he “had a reputation for aggressively pursuing drug dealers and users,” the Washington Examiner disclosed, citing the work of the Brennan Center for Justice, which “reports that drug convictions made up 40 percent of his convictions when he served as U.S. Attorney for the Southern District of Alabama — double the rate of other Alabama federal prosecutors.”
The memo reversed a 2013 decision by Attorney General Eric Holder that had “directed prosecutors not to report the amount of drugs involved in an arrest if it would trigger mandatory minimums for non-violent offenders who had no ties to drug cartels or gangs and who did not sell to children,” NBC News announced. Just as the era of mass incarceration was beginning to slow down, it appears that the brakes have been released. Two weeks ago, three highly-informed people discussed what has been going on with the state of policing in the Land of the Free, and what can be done about it.
Barry Friedman, professor of law at New York University and director of the Policing Project, will have none of the idea that there is a “war on cops.” He was joined on the stage at the midtown venue Interface, hosted by New America NYC, with two other well-informed people, Sherrilyn Ifill and Trymaine Lee, respectively the president of the Legal Defense and Educational Fund at the NAACP and a national reporter for NBC who was tear-gassed in Ferguson, Missouri by the National Guard.
“All through the 1990s,” Friedman began, “I became increasingly concerned about the permissiveness of the Supreme Court toward policing and what it was doing in the middle of the War on Drugs, the toll on people’s lives, the toll on liberties.” He added, “And then 9/11 happened. All of a sudden everybody was talking about how we had to cut back on our liberties in order to make ourselves safe. Sandra Day O’Connor came to NYU and broke ground on a building and said that — sitting Supreme Court Justice — we’re going to have to cut back on our liberties, and I was astonished.” Friedman went around asking “what do you think the police should be able to do that they can’t do?” He realized “we needed a way to get people to understand what was happening.”
The goal, as Friedman sees it, is what Lee described as “democratic policing”: “If you think about accountability,” Friedman said, “in government, democratic accountability, what we usually mean is ... we have rules, we put those rules in place before we let officials act; they’re transparent, we all know what the rules are. And the public is involved in writing the rules, and we try to make sure the rules do more good than harm.” This is front-end accountability, he added. “And then we have back-end accountability, we have courts to make sure all of that works. But in policing, instead of front-end accountability we do back-end accountability: we try to step in after things have gone wrong and fix them. Civilian review boards, inspectors general, judicial review, body cameras.”
“We have a warped view of what that public safety function should be,” Ifill said. “We’re talking about police officers as though they’re professionals but we’re not treating them as if they’re professionals. ... For the people that we equip with a taser and a nightstick and a gun and a shield and with the authority of the state to take life, we don’t do that.” She added, “What is also problematic is that the back-end is broken. ... Just last week, the Florida legislature apologized to four men, known as the Groveland Four, who were caught up in a kind of lynch mob in Lake County, Florida in the late 1940s and early 1950s; two of the men were actually killed, one by a police officer, Sheriff Willis McCall, who basically controlled the county.”
“So,” Ifill continued, “the Florida legislature just apologized for what happened in Lake County ... how many years later is that? The back-end is so broken that apologies come in 65 years later for things that should have been resolved and should have been dealt with.” Police officers “have become routinely immunized from the legal system that could have made things better.” Friedman interjected that “when the back-end works, and it doesn’t, it tells us where they are problems that we can then write rules for on the front-end, but we don’t have that.”
On that point, Lee asked about the case of Tamir Rice, “a 12-year-old boy who was shot and killed by police. Someone called 9-1-1 and said ‘there’s a man with a gun in a park,’ they say that the gun ‘may be a fake’ — right, they said it may be a fake — the responding officers in their police cruiser roll up and then within just feet of Tamir Rice and shoot and kill him before the car even comes to a stop. Later on we find out that the police officer who fired on Tamir Rice had this terrible record, he was fired from a former department, no one had any of these details. His accounting of what actually happened contradicted itself time and again.” He asked, “When you talk about front-end accountability, in a situation like this what should it look like?”
“Departments have use of force policies,” Friedman replied, “but they’re not always public. In fact, there was a fight in Chicago where the superintendent said to the public, ‘Here’s our new proposed use of force policy and I have this email sitting on my desk in the office from the union saying the world’s gone upside down, we’re asking people what the use of force policy should be.’” Friedman said that “a good use of force policy, one that’s publicly vetted, tells officers they have to deescalate, that they have to use distance and time, which they could have used in that situation,” referring to the Rice case.
Ifill said that “if police chiefs are being honest they will tell you, one, they would like to have better training for who they hire as police officers; two, they would tell you, and many have told me, they would love to have the age raised.” Further, “they would love to have a database they could go into that would show them officers who have been fired. They’re managers, right? Who wouldn’t want to know that?” What is needed, she said, “is transparency and honesty about the fact that this is something any employer who is hiring someone who is going to use lethal force would want.”