“Defund the police” has become the clarion call of some
but not among the vast majority of Americans, especially, African Americans.
Two polls taken in late June and early July, 2020 found strong support for law
enforcement with 73% opposing abolition of police in one poll[i]. Meanwhile, Gallup found that 81 percent of
African Americans support either the same amount or an increased police
presence in their communities.[ii] Defunding the
police is clearly not a solution to problems faced by law enforcement, many of
which are the result of poor government policy which is then thrust on law
enforcement to handle. Better ideas and better
solutions need to be discussed and vetted for implementation rather than just imposing
an unpopular solution which clearly lacks public support despite what a loud
minority would have us believe.
There are solutions which can begin to correct the problems facing law
enforcement. Some of the solutions may in fact incorporate a few of the ideas
proposed by advocates which change responsibility for certain activities away
from a law enforcement responsibility to that of non-law enforcement agencies.
Reform #1 The Drug War
The War on Drugs might be the worst public policy implemented since 1970 for
several reasons. Confining those to current events and specifically to racial
discord is difficult because of the pervasiveness the drug war has on every
aspect of criminal justice. For that reason, I will attempt to confine this
discussion to the impact of policing the drug war and its disparate impact on
minorities by quoting an aide to President Nixon, John Ehrlichman.
“The Nixon campaign in 1968, and the Nixon White House after that, had two
enemies: the antiwar left and black people. You understand what I'm saying? We
knew we couldn't make it illegal to be either against the war or black, but by
getting the public to associate the hippies with marijuana and blacks with
heroin, and then criminalizing both heavily, we could disrupt those
communities. We could arrest their leaders, raid their homes, break up their
meetings, and vilify them night after night on the evening news. Did we know we
were lying about the drugs? Of course we did.”[iii]
As Abolitionist
Lysander Spooner wrote, “It is a maxim of the law that there can be no crime
without a criminal intent; that is, without the intent to invade the person or
property of another.”[iv] To make vices crimes and
with the racial intent of the law, the result has been devastating on the
African American community. For example, In 2014, African Americans constituted
2.3 million, or 34%, of the total 6.8 million correctional population.[v] Worse, Black males ages 18
to 19 were 12.7 times as likely to be imprisoned as white males of the same
ages, the highest black-to-white racial disparity of any age group in 2018.[vi] When African Americans see these type of
disparities, is it any wonder why they demand reform?
Unless police are willing to stop prosecuting the war on drug, effectively
creating a de facto treatment of drugs like that of Portugal’s de jure
decriminalization of drugs, perhaps the next best approach is something called
Law Enforcement Assisted Diversion (LEAD) a program which enables officers to
divert individuals who commit crimes due to drug addiction to specially trained
case managers. These case managers coordinate addiction and mental health
treatment, shelter, housing, health care, counseling, bureaucracy, and
employment. Evaluations have shown that LEAD reduces recidivism, felony crime,
homelessness, and unemployment, while improving citizen perceptions of the
police.[vii]
Mental health diversion programs like Miami-Dade’s Criminal Mental
Health Project (CMHP) dispatch specially trained officers to emergency calls
that may involve mentall illness. These officers bring in offenders for mental
health evaluation, safely diverting many from jail to support services that include
medication, counseling, housing, and help navigating government bureaucracy.
CMHP has been shown to significantly reduce recidivism, incarceration, and
criminal justice spending.[viii]
Reform # 2 Sever
the relationship between crime labs and law enforcement
Within the current legal system, it is often difficult to challenge the analysis of a police crime lab, even for the defense. Although the word “forensic” derives from the Latin word for the forum, where citizens congregated to dispute public questions, modern forensic science is anything but public or adequately open to dispute. The forensics lab holds an effective monopoly on the analysis of the evidence presented to it. The lab’s scientist is free to infer from the evidence without being second-guessed. The forensic worker, therefore, has power.
While the vast
majority of forensic scientists wield this power fairly and competently, a few
do not. The proper function of forensic science is to extract the truth.
According, however, to a study in 2001:
“As it is practiced today, forensic science does not extract the truth
reliably. Forensic science expert evidence that is erroneous (that is, honest
mistakes) and fraudulent (deliberate misrepresentation) has been one of the
major causes, and perhaps the leading cause, of erroneous convictions of
innocent persons.”[ix]
In
the wake of DNA exonerations, an extensive literature has developed on the
limited reliability of forensic testimony. The institutional structure of
forensic work is an important source of error, insufficiency, and occasionally,
malfeasance. Our adversarial criminal courts organize disputes between
the prosecution and the defense. But the current institutional structure of
forensic science places the results of forensic scientists largely beyond dispute.
In its report to Congress the National Academy of Sciences explains: “Forensic
scientists who sit administratively in law enforcement agencies or prosecutors’
offices, or who are hired by those units, are subject to a general risk of
bias.” That is why it is time to change the relationship between crime labs and
law enforcement.
Forensic labs are often organized within police departments and are thus
dependent on the departments for their budgets. This institutional relationship
creates a pro-prosecution bias, as the managers of forensics units answer to
law enforcement agencies. For example, David Williams, an investigator in the
Federal Bureau of Investigation’s (FBI) Explosives Unit, was found to have
“tailored” his testimony “to the most incriminating result” in two trials,
namely, the prosecutions for the World Trade Center bombing of 1993 and the
Oklahoma City bombing of 1995. In the Oklahoma case, “Williams repeatedly
reached conclusions that incriminated the defendants without a scientific basis
and that were not explained in the body of the report.”[x]
“Scientific…assessment conducted in forensic investigations should be
independent of law enforcement efforts either to prosecute criminal suspects or
even to determine whether a criminal act has indeed been committed.
Administratively, this means that forensic scientists should function
independently of law enforcement administrators. The best science is conducted
in a scientific setting as opposed to a law enforcement setting. Because
forensic scientists often are driven in their work by a need to answer a
particular question related to the issues of a particular case, they sometimes
face pressure to sacrifice appropriate methodology for the sake of expediency.”[xi]
Removing forensic service providers
from administrative oversight by law enforcement (to include prosecutor’s
offices) addresses the “fox guarding the hen house” issue. Those responsible
for acting on the jurisdiction’s or defendant’s behalf in court are not in
charge of the neutral arbiter of facts that support or refute criminal
allegations. The implication is not that all law enforcement oversight of
laboratory functions is biased but that—purely based on mandated
responsibilities—the potential for that particular brand of bias is greater
than if the laboratories were independent. Other types of bias may occur but,
as an independent agency, the laboratory can at least act on them without
collateral repercussions and resistance due to professional cultural
differences.
Reform # 3 Demilitarize the Police
This subject matter is discussed in greater depth in an essay about the MNPD,
here: https://libertyseekingrebel.blogspot.com/2020/06/police-militarization-from-nashville.html
Reform # 4 Warrant service
Forced entry and no-knock warrants are almost exclusively executed in
furtherance of the War on Drugs and represent one more reason why the War on
Drugs is such a dangerously bad policy. The killing of Breonna Taylor in
Louisville, KY was a result of a no-knock warrant.[xii]
A truly meaningful reform would bar any forced entry into a
private residence unless the police have reason to suspect someone inside
presents an imminent threat to others, such as an active shooter, a kidnapping
or a robbery in progress.
Reform # 5 Public Sector Employee Unions
In the current climate, it is easy to attack police unions for their protection
of bad officers. But the truth is, as a city government, Metro cannot treat one
collective bargaining unit different from others. In other words, if the FOP is
to be excluded from certain aspects of negotiations, then the MNEA and SEIU
must be treated in the same manner. Any Council member who fails to recognize
the necessity for equal treatment of all these groups is setting the city up
for civil liability.
With that in mind, research on the subject is helpful. A 2019 study from
the researchers at the University of Chicago analyzed violent police incidents
following a 2003 Florida Supreme Court decision that granted sheriffs' deputies
the right to organize. This sophisticated analysis compares agencies with newly
granted collective-bargaining rights with other police agencies that already
had such rights. "(T)he right to bargain collectively led to about a
40-percent increase in violent incidents," the report concludes.[xiii]
This type of data cannot be ignored and must be addressed by limiting the areas in which the police collective bargaining unit can negotiate with the city. Police unions have made it impossible for police chiefs to reform their departments, get rid of the small number of thugs within their midst, root out police corruption and privatize services.
Reform # 6 OPA vs COB
If anyone has not done so, I strongly urge all to read the packet released by
Silent No More TN and its founder, former MNPD sex abuse detective and Master
Patrol Officer Greta McClain. It describes many issues within the department,
chief of which appears to be a lack of internal control. Having read the rather
long letter attached to the report by some anonymous source with detailed
knowledge of the internal problems within the department, it is time to
consider some major changes to the way complaints are handled.[xiv]
For many years, the Office of Professional Accountability handled all major
complaints against officers. Since its creation, it operated under the
leadership of a civilian but its investigators were sworn officers. It was believed
this would create a perception that those who investigated officers were
somewhat separated from the officers they investigated. However, as years
passed, the citizens of Nashville believed this to be an insufficient means of
police oversight and in a county-wide referendum chose to create a Community
Oversight Board. The result has been conflict between the MNPD and the COB, a
lack of direction for the COB which led it down a path of decades old cases and
COB being left out of active situations. The time is ripe for Metro government
to take some action beyond that which the referendum calls for and move to a
different approach of the investigation of complaints.
It may be helpful to first understand how the process works now. A complaint
which goes to OPA for investigation is assigned to investigators who then
compile testimony and evidence to complete a report which is then reviewed by
their supervisors and ultimately by the director of OPA. The report will detail
the findings of the investigation and then present a recommendation to the
Chief of Police. The findings of the report may exonerate the officer, sustain
the complaint, find a problem with departmental policy and fail to sustain the
complaint. In a case where the officer faces any type of disciplinary action,
the officer may request a hearing before the Chief’s Review Board. The final determination
of the case is for the Chief of Police.
With that in mind, and with the report included in the Silent No More packet,
it appears to be time to transfer all major complaints to the COB and to
abolish the OPA and the Chief’s Review Board. If this is done, additional
investigative resources will be needed equal to the number of investigators
working in OPA. The result of this would be to have civilian, non-police
investigators conducting investigations of allegations of violations of
department policy and those investigations would then be presented to the Chief
of Police for final disposition. The COB would act as the hearing board in the
same manner the Chief’s Review Board currently acts but any final determination
would still rest with the Chief of Police based on the recommendation of the
COB. Minor complaints ought to still be handled by immediate supervisors or the
investigators of the COB will be overwhelmed with minor complaints. The
findings of the immediate supervisors can also be taken to the COB for a hearing
on the supervisor’s recommendation at the discretion of the officer against
whom the complaint was made.
Conclusion
These six recommendations are not comprehensive but would go a long way toward reconciling the legitimate goals of law enforcement with the citizens it must protect. Other changes which might also be considered, if legal, would be to forbid civil asset forfeiture without a criminal charge related specifically to the property being seized and abolishing bonds for non-violent misdemeanors or at the very least, require the use of a misdemeanor citations for all non-violent misdemeanors. Taken as whole, these reforms are in keeping with the wishes of the voters of Davidson County and reflect polling indicating the desire for police to do as much if not more to protect their lives and property.
[iii] "Dan Baum – Harper's Magazine". harpers.org. Archived from the original on July 30, 2017. Retrieved July 30, 2017
[iv] from, Spooner, Lysander “Vices Are Not Crimes: A Vindication of Moral Liberty (1875)
[ix] Michael J. Saks, et al., “Model Prevention and Remedy of Erroneous Convictions Act,” Arizona State Law Journal, vol. 33, 2001
[x] United States Department of Justice, Office of the Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (http://www.usdoj.gov/oig/special/97-04a/index.htm, 1997)
[xi] National Research Council. 2009. Strengthening Forensic Science in the United States: A Path Forward. Washington, DC: The National Academies Press at 23-24.[xi]
[xii] https://www.usatoday.com/story/news/factcheck/2020/06/30/fact-check-police-had-no-knock-warrant-breonna-taylor-apartment/3235029001/
[xiii] Dharmapala, Dhammika and McAdams, Richard H. and Rappaport, John, Collective Bargaining Rights and Police Misconduct: Evidence from Florida (August 2019). University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 831, U of Chicago, Public Law Working Paper No. 655, Available at SSRN: https://ssrn.com/abstract=3095217 or http://dx.doi.org/10.2139/ssrn.3095217