Police Abuse

It's Not Just About Race, It's About Power

Rethinking policing after the deaths of Eric Garner and Michael Brown

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On December 2, Attorney General Eric Holder, the top law enforcement official in the country, went to Atlanta's Ebenezer Baptist Church to announce that the Justice Department would soon "institute rigorous new standards-and robust safeguards-to help end racial profiling, once and for all."

Neither time nor place was accidental. Ebenezer was the home church of civil rights hero Rev. Martin Luther King. And December 2 was one week after a grand jury in Ferguson, Missouri, opted to not indict Officer Darren Wilson in the shooting death of Michael Brown. Two days after the speech, a Staten Island grand jury would also decline to indict Officer Daniel Pantaleo in the choking death of Eric Garner. In both cases, the cops were white, the victims black. Both decisions touched off nationwide protests that were largely about race, with demonstrators consistently making the basic point that "black lives matter."

So in one sense Holder, the country's first African-American attorney general, was simply responding to the Zeitgeist of the moment, much the same way President Barack Obama did a day earlier at a White House summit meeting announcing a new task force to improve the relationship between police and communities of color. "[We need] to begin a process in which we're able to surface honest conversations with law enforcement, community activists, academics, elected officials, the faith community, and try to determine what the problems are and, most importantly, try to come up with concrete solutions that can move the ball forward," the president said.

But by focusing on the role of race to the exclusion of other contributing factors in these cases, both the powerless in the streets and the powerful in the suites were letting an important culprit off the hook: power itself.

Start with the grand jury process that produced both non-indictments. "The system is under the complete control, under the thumb, of prosecutors," Cato Institute Criminal Justice Director Tim Lynch told CBS News in December. "If they want an indictment they are going to get an indictment. If they don't want an indictment it won't happen."

This is an exact perversion of the grand jury's initial intent, as enshrined in the Fifth Amendment to the Constitution. "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," the provision reads. Grand juries, composed as they are from local citizens outside the criminal justice system, were supposed to impose a civilian check on potential prosecutorial overreach. But a design flaw was soon baked into the process: This alleged check on prosecutorial power depends absolutely on the contributions of the prosecutor himself.

"As a practical matter, the prosecutor calls the shots and dominates the entire grand jury process," Lynch and two co-authors wrote in a 2003 Cato paper on the grand jury system. "The prosecutor decides what matters will be investigated, what subpoenas will issue, which witnesses will testify, which witnesses will receive 'immunity,' and what charges will be included in each indictment. Because defense counsel are barred from the grand jury room and because there is no judge overseeing the process, the grand jurors naturally defer to the prosecutor since he is the most knowledgeable official on the scene."

Ken White, a libertarian attorney who runs the caustic blog Popehat, presented several cases to grand juries during his stint as a federal prosecutor in Los Angeles. "That experience," White wrote in a February 2014 post, "did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers."

White continues: "The notion that the Supreme Court relies upon-that the grand jury has a 'historical role of protecting individuals from unjust persecution'-is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction."

In practice, the only class reliably protected by grand juries is people that the local prosecutors don't actually want to prosecute. Namely, cops. The conflicts of interest here are beyond blatant: Prosecutors absolutely depend on the work and testimony of police to send defendants to jail. Grand juries absolutely depend on prosecutors to present information and guidance on whether to indict. There is no impartial judge, no adversarial check on the power of law enforcement.

So when protesters focus on the racial composition of grand juries that deliver results they don't agree with, it's a bit like complaining about the way a Great White Shark looks at you before biting off your leg. We cannot measure or re-engineer what lies in human hearts, but we can identify the criminal justice system's broken structures, perverse incentives, and wholly disproportionate tools.

Eric Garner was stopped on the street by cops looking to enforce New York's insanely high cigarette taxes. The city's notorious "stop and frisk" program, ostensibly justified by the need to enforce gun laws, is actually a method by which police harass residents of crime-ridden neighborhoods-which tend to be more poor and nonwhite-using drug laws as the legal weapon of choice. Police departments everywhere, of all racial compositions, have financial incentives to rack up low-level arrests and keep the low-hanging fruit of petty street violators in the revolving door of court appearances, fines, and late fees.

When you add into the mix the noxious and federally driven practice of civil asset forfeiture, whereby cops are allowed to seize and pocket the property of people who aren't even charged with a crime, then you can begin to understand how the citizens that police are supposed to protect begin looking more like marks that they are empowered to shake down.

Which is why the words of Obama and Holder ring so hollow. "Racial profiling," with very rare exception, does not describe a deliberate police policy of directing extra law enforcement at people based on skin pigment-that's already plenty illegal, due to federal civil rights law and the 14th Amendment, and it's also contrary to the basic mores of a modern America racially enlightened enough to elect an unimpressive black president twice. Instead, the term has become a catchall to bemoan the disproportionate racial impact of policing. You could just as easily use "racial profiling" to describe the disparate impacts of eminent domain seizures or bad public education policies.

The president says he wants "to try to determine what the problems are," but we know what many of them are already: a drug war that criminalizes victimless behavior and creates a black market economy, a judicial system that gives prosecutors and police a near blanket level of immunity for wrongdoing, a forensics system riddled with conflicts of interest and pseudoscience, a federal criminal code that has grown so large that people don't even know when they're breaking some dumb law. These critiques are not obscure; many of them have emanated from within the government itself.

America will always be having a "conversation about race," and rightly so, given our poisoned history. But by overracializing the cases drawing most attention, we quickly arrive at a wearying impasse, with Al Sharpton shouting on one side and Rudy Giuliani barking on the other.

There's a perhaps simpler way of looking at things, one that gets you more quickly to actual solutions instead of cud-chewing task forces. And that is: When you give government a powerful tool, the powerless will feel it first. Absolute power will be felt absolutely. How do we roll that back? Let's have a conversation.

NEXT: You promised to "defend the Constitution" against "all enemies, foreign and domestic." Now what?

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  1. in these cases, both the powerless in the streets and the powerful in the suites were letting an important culprit off the hook: power itself.

    I think it that is a feature, not a bug.

    1. look- that’s a more complicated narrative. we don’t like complicated narratives.

  2. Maybe focusing on a racial aspect is the only way they think they can get anything changed, or maybe that truly is all they know. Either way, look for nothing to change from this.

    1. I think is a purposeful tact to make sure nothing changes. A wink and a nod from the race baiting wing of the Left to the power and union loving wing.

      Make sure there is no safe ground between the two stupid extremes.

      1. Yes and no.

        I have this argument with a libertarian-leaning friend of mine. He sees conspiracies. But I argue that the creeping socialism (or fascism) we see in the U.S. isn’t a well-planned strategy, it’s an organic monster that serves evil. It’s a parallel to the unplanned market that serves good.

        In the specific case of this post, picture yourself in Holder’s position: what is the path of least resistance? Would it be easier to fight the cops and their unions, or would it be easier to fight racism, which almost everyone agrees is bad? His paycheck isn’t based on results — he is a government employee.

        1. That is a very good analysis. Despite it being an organic monster all of the people involved are still consciously aware of what they are doing and what the results will be.

          1. all of the people involved are still consciously aware of what they are doing and what the results will be.

            Not quibbling, but imo I suspect many of them are not really aware of the consequences. I don’t think most of the enablers think them through so much.

      2. Look at what happened when Rand Paul tried to blame the Eric Garner assassination on something other than race.

        1. This. Paul’s point that we suffer from overcriminalization was completely missed by most, including John Stewart.

    2. How cynical. This is the libertarian moment, after all

      1. Did you hear that from Millenials, in the form of a poll?

        1. They polled dentists. 3 out of 4 dentists agreed.

    3. Those focusing on the racial aspects are not trying to get anything changed. For the media and the race hustlers, racial animosity is their bread-and-butter, a problem to be exploited, not solved. They pretend that the problem is police misconduct, but choose the absolute worst cases to make their stand – cases where the police’s use-of-force is debatable but racial animosities can be stoked. It’s a perfect way to make sure nothing gets solved and keeps gravy train running on time.

      1. The racial grievance professionals definitely look to foment racial animosity wherever and whenever they can – and they often seem to gain the most traction on cases that are murky at best, downright dishonest at worst. Remember Twana Brawley? That case created Al Sharpton inc.

        Back in the 90’s there was a flood in Georgia. The local civil rights leadership complained that black communities were intentionally flooded by releasing water from a dam to spare white areas. Jesse Jackson was even able to get an official investigation by the department of justice. It was a huge deal. Arial photographs that showed the dam in question completely submerged under the flood waters didn’t seem to matter to anyone.

        These people get a lot of power and money from ginning up racial hatred. They aren’t about to stop until that fact changes.

    4. Oh, I think some things will change. Instead of white cops killing black people, there will be a nation-wide hiring effort to ensure that it is black cops killing people. And maybe we’ll see national quotas to ensure that the population of arrestees more closely resembles the racial profile of this country. Now, granted, given that whites tend to be more affluent and, therefore, more likely to commit victimless crimes behind closed doors, that’s going to mean freedom’s going to have to be infringed even more. But, now we’ll have policing that is uniformly oppressive. Progress.

    5. Heres a great example of the interesting dynamic on H&R: the left sides with us against the police, the right sides with the police, and the commenters here focus on how whether the left is stupid or evil for siding with us for different reasons than we have.

      1. the left sides with us against the police

        The left isn’t siding with us! We want the police to be restrained from violating people’s rights. They want the rights violations to not be racially driven.

        Principles, not principals, Bo. I am not opposed to a policeman. I am opposed to what he does. The left, generally speaking, don’t disapprove of the actions I am disapproving of. Rather, they want him to keep hurting people, but more gently.

      2. Bo as policymaker:

        “Here’s a great example of the interesting dynamic in Congress: Al Quaeda sides with us against ISIS. And Congressmen are focusing on whether Al Quaeda is stupid or evil for siding with us for different reasons than we have.”

        Does the left want to repeal any of the laws that lead to so many of the problems with police? Oh, wait, no, no they don’t. In fact, they’re arguing to punish the police for not sufficiently harassing the public over these laws.

      3. #all-lives-matter

    6. i am a volunteer for the puppycide database project – a site that compiles a list of every time a cop has killed a pet. i use twitter to try to drive attention to the site. at one point, i sent out a tweet with a link to a news article that described a protest march organized jointly by animal rights ppl and anti-brutality ppl to draw attention to police killings. almost immediately, a woman who claimed to be involved with the new york eric garner protests called me a “racist”, citing my link to the news article as evidence.
      I dont pretend to understand why people are drawn to the racial argument to the exclusion of all others. politically its a sexy issue because it is untractable and insolvable. also, racism has poisoned our nations history since its inception. but neither of those things explain why that woman publicly smeared me as a racist, and they dont adequately explain why so many think that carrying signs that say racism is bad will stop police from murdering children.
      sometimes i think that everyone in this country is in complete and utter flight from reality. except for the folks here at reason, of course.

      1. “sometimes i think that everyone in this country is in complete and utter flight from reality. except for the folks here at reason, of course”

        Read more of the comments.

  3. “[We need] to begin a process in which we’re able to surface honest conversations with law enforcement, community activists, academics, elected officials, the faith community, and try to determine what the problems are and, most importantly, try to come up with concrete solutions that can move the ball forward,” the president said.

    Now, *that* is leadership.

    1. Any time somebody says they want to have a “conversation” or “dialog” about race, you know what they really want is to lecture or harangue you.

    2. I am so fired up, so inspired by this, I may just amble over to the coffee machine and get another cup. Whee.

  4. Holder [said] the Justice Department would soon “institute rigorous new standards-and robust safeguards-to help end racial profiling, once and for all.”

    What, exactly? Making it illegal to use the term “Black” when referring to suspects? Classifying surveillance videos? What?

  5. Related to the problem described in this piece is jury nullification.

    Full blown nullification should be re-enshrined in our system and every jury, no matter what level of crime committed, be it petit or grand, should be instructed that THEY are the final word: THEY can ignore the judge, the law?everything?to bring about a truly just outcome.

    Of course, in my lifetime, this will never happen. Cops, prosecutors, judges and legislators would be completely terrified of this and would fight it at every turn.

    Would it be abused like old “klanner” trials? Absolutely. But so is the existing system, and to a much greater extent.

    Bring back JURY NULLIFICATION!

    1. I got yelled at by a judge during jury selection because I said that jury nullification was a right of all jurors.

      She told me that SHE would give the jury the law and they must follow it. The jury could only decide on the facts of the case.

      After I told her that no one could take away a person’s right to follow their conscience, she told me in no uncertain terms I was wrong and then booted me.

      1. You sly dog — I see what you really did.

        In was on a jury where a question was posed to us about religion. I admitted I was an atheist and they STILL didn’t kick me off.

      2. Ugh. You did no good by being so obstinate. You got kicked off.

        The jury decides the facts. If the jury decides that Joe wasn’t smoking marijuana but instead was eating cotton candy while riding a flying elephant, then that is what the fuck Joe was doing.

        Being the finder of fact is a perfectly good position for nullification.

        1. I didn’t try to be obstinate and the issue came up in some oblique way.

          I think the judge was asking me some questions because my dad was a probation officer and somehow she sort of brought up the concept of jury nullification. But she worded it in some obscure way. I asked “Are you talking about jury nullification?” and she quickly said no and called a sidebar with the lawyers.

          Later the defense lawyer asked me more about what I thought about jury nullification. I told him what I thought which resulted in another side bar. Then more questions about what I thought jury nullification was. Then the judge lectured me and threw me off.

          I’m not sure being thrown off was a total loss. I did get a soap box for a while to lecture the other jurors on what jury nullification was. I also then ended up on a murder trial (although I was an alternate and didn’t get to vote).

          The defendant in the murder trial was acquitted because there was no credible witness against him, so I feel the jury did a good job.

      3. I got yelled at by a judge during jury selection because I said that jury nullification was a right of all jurors.

        Loud enough for all the other prospective jurors to hear it? 🙂

        1. Actually yeah, it was loud and in front of the other jurors.

          1. Excellent.

      4. *sly stallone voice* I AM THA LAW

    2. Nullification is evil because car mechanics, or whatever peon scum makes it on the jury,will side with pedophiles and rapists.

      But seriously, you’d think the left, with its “power to people!” would support nullification. I guess that would mean recognizing their own cognitive dissonance and without that all you got left is petchuli.

      1. When the left talks of power to the people, they mean everyone except you. That’s the people. The government serves the collective will of the people. Not your will, but the will of everyone else. So who the fuck are you to question a law through nullification? That law represents the will of the people. Of everyone but you. You don’t count. Only the people count.

        1. The left sees it something like this?

      2. ‘Power to the people’ is a collectivist slogan. Jury nullification means people are thinking for themselves, an evil individualist trait.

        If the left had its way juries would be discarded all together and only Top Men would render verdicts.

  6. They need more power so they can have the power to stop abusing their power!

    The solution to bad government is always more government!

  7. Jimmy Page dating 25 yr old “actress” Scarlett Sabet who is 18 yrs younger than his daughter Scarlet.

    Oh, she’s an actress all right she’s a real actress………….

    http://www.huffingtonpost.ca/2…..57602.html

    1. Harrison Ford And Calista Flockhart
      Harrison Ford, 720, has been married to Calista Flockhart, 50, since 2010.

      A 670 year difference.

      1. It was all those years spent in carbonite. Keeps a man fresh.

      2. Calista Flockhart is 50. Way to make me feel old.

        1. As old as I felt the day Stairway To Heaven turned 40 years old?

          1. People like that song?

        2. I told my wife, “I’m feeling old”
          She asked, “Why, what happened?”
          I said, “I squeezing your ass right now.”

          Needless to say, I only tried that joke once.

          1. Or as Groucho Marx said, “You’re only as old as the woman you feel.”

            1. I hate Groucho, he said all the good ones already.

    2. I knew I should have taken those guitar lessons.

      1. That was my first thought as well.

    3. An old man dating a very young woman who not only has the same name as his daughter, but resembles her more than a little bit.

      Why, there is nothing creepy about that at all.

  8. “…a federal criminal code that has grown so large that people don’t even know when they’re breaking some dumb law.”

    Should read, “…a federal criminal code that has grown so large that police officers are not required to know which dumb law you breaking.” as per SCOTUS.

  9. Let’s have a conversation.

    That’s mighty white of you, Matt.

  10. Facing Facts

    “The Negro minority, the largest and most violent minority, … presents the United States with a problem which seems beyond solution.” -Wilmot Robertson, The Dispossessed Majority (1981)

    His critics have characterized Robertson as a “racist”. Even be that characterization valid, is that which he wrote invalid?

    Reportedly, Negroes are six times more likely to kill a police officer than Caucasians. What’s a cop to do?

    Some years ago, this commentator drove a taxi on the South Side of Chicago, geographically dangerous. The first night, a group of other drivers, all Negroes, warned me sternly but sympathetically, “If you see a colored man alone at night, leave him be. If he’s with a woman … OK.” Yes, these other drivers were “profiling”. Why? Because their lives and mine were at stake. We all were operating under the same potentially fatal contingency.

    Of note, in those days, calling Negroes “black” was considered by them insulting; the imprecise term, African-American had not been coined, yet. They were quick to advise you, “I’m Negro, or I’m colored, but I am not ‘black’!” (http://nationonfire.com/category/context/). Today, these terms have become insults; ironically, mostly so to Caucasians of the Left. These are facts, not opinions. Face them.

    1. what in the hell?

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  13. “Eric Garner was stopped on the street by cops looking to enforce New York’s insanely high cigarette taxes.”

    What evidence do we have for that, as opposed to “looking to harass some guy for laughs”?

    1. Because that is what they were called about by neighboring store owners who abide by the (ridiculously confiscatory) law?

  14. I’m keeping on…

    https://www.youtube.com/watch?v=jWiiWUyt69w

    Gotta love cops, baby!!!

  15. “How do we roll that back? Let’s have a conversation.”
    lol. that’s one of my problems with libertarians. they don’t realize when the time for talking is over.

  16. HAHAHAHAHHAHAHAHHAHAHAHAHAHHAHAHAHAHA HAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHH HAHAHAHAHAHHAHAHAHA HAHAH HA HA HAHAHAHAHAHAHAA! A conversation. HAHAHAHHAHAHAHAHAHAHAHHA HAHAHHAHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAH!

    Um, OK. I await the observations of every Reason commenter who will sign up for a ride along with his or her local police department to get a first hand perspective on what policing actually entails. I fully expect that almost all (if not every one) will have magically gone on one of those few rides where no one was beaten, tazed or executed.

  17. $89 an hour! Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening?And i get surly a chek of $1260……0 whats awesome is Im working from home so I get more time with my kids.
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  19. On the drug front, people are finally starting to talk realistically about a subject that is way over due. Colorado’s legalization of pot has definitely lit a few dim lights. States can’t afford to jail people convicted of drug possessions anymore. Besides, it’s a bit embarrassing to jail addicts who have better access to drugs on the inside than they do on the outside.

    I agree wholeheartedly with you, it does cause a black market economy. One that introduces a criminal element into the equation that wasn’t there before.

    Now prosecuting police on the other hand, will always be a daunting task. I quite honestly don’t know who has the answer. Maybe, rotating prosecutors from surrounding counties except, the system is still going to be the same.

    Forensics– they seriously have started to be a sideshow. Expert witness is just somebody’s human opinion.

    Perhaps dot guv will soon have an app to keep us posted and up to date.

    So far so good Matt.

    “Racial profiling does not describe a deliberate police policy”

    NO, maybe not deliberate, but a mind-set starts to develop overtime
    when police have (imagined or inferred) quotas they need to meet, and continually target a specific population.

    Here is my sign:

    Poor people’s lives of all color matter

  20. You make some valid points, but it’s curious that you leave out the cause of the Michael Brown riots. That thug was totally at fault, yet you say nothing about the prejudice of Obama and Holder. Especially the U.S. DOJ fomenting racism, anarchy and the burning and looting of a city.

    You always tiptoe around it but never call out Obama for what he truly is, a community race baiter, in the same mold, and no better than Al Sharpton.

  21. It’s Not Just About Race, It’s About Power….
    So We cannot measure or re-engineer what lies in human hearts,

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