On Saturday, extensive protests in Baltimore arose in response to the death from a spinal cord injury that a young black man, Freddie Gray, sustained while in police custody. Although Gray’s arrest was captured on video, the exact cause of his injury is yet to be determined. Police, however, have acknowledged that, at a minimum, proper procedures had not been followed. Gray’s death on April 19 came on the heels of the fatal shooting in South Carolina of Walter Scott, also an unarmed black man, on April 11.
The video of Walter Scott’s shooting had been particularly chilling as it showed him to be not only unarmed but in full flight and of no apparent danger to anyone. The increasing prevalence of phones with cameras almost certainly means that we have not seen the last of similarly horrifying scenes, and those images may be more powerful than the proverbial thousand words or statistics. Readers of a certain age will recall the impact on the public consciousness of televised scenes from the Vietnam War that overwhelmed claims of military success. As visual evidence accumulates across the country, it will become increasingly difficult to deny the existence of a problem of national dimensions and the need for some kind of a national response.
The President has attempted a response, or the beginnings of one, but its likely effectiveness is uncertain at best. Last fall, after the tragic events in Ferguson, Missouri and on Staten Island, New York had resulted in widespread outrage, President Obama appointed a Task Force on 21st Century Policing. The Task Force delivered a document on March 1, 2015 described as an Interim Report. (It is not clear whether a further report will be forthcoming; the Executive Order creating the Task Force requires a final report within 30 days of one being requested by the President.) Interim or not, the Report of more than 100 pages reflected a substantial piece of work, particularly given the relatively short time in which it was produced. It encompassed the results of “listening sessions” at which a large number of witnesses, with varying experiences and points of view, had testified. While difficult to absorb in its entirety, we believe that readers would find the Report worth their perusal, and it is available here.
The Report sets forth 63 Recommendations that are accompanied by 86 Action Items (collectively herein “Recommendations”) stated in varying degrees of specificity. While expressed in generally neutral terms, many of the Recommendations clearly implicated policies, practices and procedures of great interest to minority communities and of legitimate concern to everyone.
Some of the Recommendations were addressed to the Justice Department (or “the federal government”), but the bulk were directed to local law enforcement agencies (or sometimes, even more generally, “communities”). A few of the more significant included the following (with our emphasis added to key phrases):
- 1.2 RECOMMENDATION: Law enforcement agencies should acknowledge the role of policing in past and present injustice and discrimination and how it is a hurdle to the promotion of community trust.
- 1.8 RECOMMENDATION: Law enforcement agencies should strive to create a workforce that contains a broad range of diversity including race, gender, language, life experience, and cultural background to improve understanding and effectiveness in dealing with all communities.
- 2.2 RECOMMENDATION: Law enforcement agencies should have comprehensive policies on the use of force that include training, investigations, prosecutions, data collection, and information sharing. These policies must be clear, concise, and openly available for public inspection.
- 2.2.1 ACTION ITEM: Law enforcement agency policies for training on use of force should emphasize de-escalation and alternatives to arrest or summons in situations where appropriate.
- 2.2.2 ACTION ITEM: These policies should also mandate external and independent criminal investigations in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.
- 2.2.3 ACTION ITEM: The task force encourages policies that mandate the use of external and independent prosecutors in cases of police use of force resulting in death, officer-involved shootings resulting in injury or death, or in-custody deaths.
- 2.7 RECOMMENDATION: Law enforcement agencies should create policies and procedures for policing mass demonstrations that employ a continuum of managed tactical resources that are designed to minimize the appearance of a military operation and avoid using provocative tactics and equipment that undermine civilian trust.
- 2.8 RECOMMENDATION: Some form of civilian oversight of law enforcement is important in order to strengthen trust with the community. Every community should define the appropriate form and structure of civilian oversight to meet the needs of that community.
- 5.9 RECOMMENDATION: POSTs [Peace officer Standards and Training] should ensure both basic recruit and in-service training incorporates content around recognizing and confronting implicit bias and cultural responsiveness.
- 5.9.1 ACTION ITEM: Law enforcement agencies should implement ongoing, top down training for all officers in cultural diversity and related topics that can build trust and legitimacy in diverse communities. This should be accomplished with the assistance of advocacy groups that represent the viewpoints of communities that have traditionally had adversarial relationships with law enforcement.
The Report is a comprehensive menu of issues to be addressed and, to some extent, steps to be taken. Most of the Recommendations, however, are vague or susceptible to more than one interpretation, and few are likely to be easy to implement. The difficulty in implementation is, ironically enough, illustrated by the example of Baltimore. In the Report, Baltimore’s experience, under the leadership of Commissioner Anthony Batts, was held up a something of a model:
At one listening session, a panel of police chiefs described what they had been doing in recent years to recognize and own the history and to change the culture within both the police forces and the communities.
Baltimore Police Commissioner Anthony Batts described the process in his city:
“The process started with the commissioning of a study to evaluate the police department and the community’s views of the agency . . . . The review uncovered broken policies, outdated procedures, outmoded technology, and operating norms that put officers at odds with the community they are meant to serve. It was clear that dramatic and dynamic change was needed.”
Ultimately, the Baltimore police created the Professional Standards and Accountability Bureau, tasked with rooting out corruption, holding officers accountable, and implementing national best practices for polices and training. New department heads were appointed and a use of force review structure based on the Las Vegas model was implemented. “These were critical infrastructure changes centered on the need to improve the internal systems that would build accountability and transparency, inside and outside the organization,” noted Commissioner Batts.
We cite that example not to question the competence or sincerity of Commissioner Batts, but merely to note that competence, sincerity and good intentions are not always enough.
The weakness of the Report may be that it did not propose the creation of a mechanism or institution to guide, monitor and evaluate the implementation of the Recommendations. The Report did call for an expanded role on the part of the Office of Community Oriented Policing Services (COPS) in the Department of Justice, but that office has limited funding and participation in its programs is voluntary. The Report also recommended that the Department of Justice “explore public-private partnership opportunities, starting by convening a meeting with local, regional, and national foundations to discuss the proposals for reform described in this report and seeking their engagement and support in advancing implementation of these recommendations.” Whether the Department will adopt that recommendation, and if so what it will accomplish, remains to be seen.
Admittedly, any expansion of the federal role in reforming local law enforcement is a delicate political matter. As President Obama acknowledged, quite correctly, “Most of the recommendations that have been made are directed at the 18,000 law enforcement jurisdictions that are out there. Law enforcement is largely a local function as opposed to a federal function.” Moreover, most Republicans are highly sensitive to issues of federalism and apt to resist any perceived encroachment on state or local prerogatives. One possible means of gaining Republican support might be to encourage, through funding, the creation of state offices that would take the lead in bringing reform to local agencies.
As a final note, the Task Force, pointed out that policing is only one aspect of criminal justice and recommended the creation of a task force, that could provide a comprehensive review of the criminal justice system, including such matters as drug policy, sentencing and incarceration that were beyond the scope of its own review. As the Task Force noted, legislation creating a commission authorized to make such a review was blocked in 2011, and President Obama has given no indication as to whether he might support that recommendation of the Task Force. Nevertheless, today there appears to be growing momentum for criminal justice reform coming from both left and right. One prime example is the Coalition for Public Safety which has united a variety of diverse and often antagonistic interest groups to support criminal justice reform. We support their effort and plan to discuss it in a future blog.