• Sat. Feb 4th, 2023

Taking advantage of the window for criminal justice reform

ByHyper Balmond

Aug 25, 2020

[cross-posted from Facebook]

A friend of mine recently posted: “I wish Breonna Taylor got as much attention as Aunt Jemima.” Absolutely. I love the enthusiasm across the board, but I do hope there can be enough focus on actually accomplishing some major reforms to the criminal justice system while people are interested and motivated to effect change.

And no, what has been proposed by the President is not it. As Radley Balko said: “The highlights of Trump’s police reform plan: 1) Addressing the system’s inability to hold bad cops accountable by setting up a database of bad cops whom the system has held accountable. 2) Banning chokeholds, except when cops decide they need to use one. 3) LAWANDORDER”

Here are a few things that I would support (certainly not an exclusive list):

  1. End Qualified Immunity (as it exists now). As originally intentioned in the 1967 Supreme Court ruling, the doctrine was intended to prevent nuisance suits. Qualified immunity prevented suing a police officer for violating rights unless those rights were clearly established and would reasonably be known. As it currently stands and is bizarrely being interpreted by the courts (in the last 15 years or so), plaintiffs must prove that there exists a prior court determination made in actual litigation under facts extremely close to those of the case at hand, or else the case is dismissed (It’s the “how could I possibly have known that having a dog attack a suspect who is sitting on the ground with his hands up is a violation of his rights, since in the prior case, the suspect was lying down?” defense). Yes, that’s an actual example (Baxter v. Bracy). This makes it almost impossible to sue regardless of how egregious the behavior. The Supreme Court has just chosen not to visit this, so it needs to be done through legislation. This is an area that has some bi-partisan support (tri-partisan, actually, with Amash co-sponsoring a bill in the House). Short of eliminating qualified immunity, I’d accept a significant adjustment to the doctrine that prevents trivial lawsuits while not assuming all police officers to be ignorant of the rights of citizens.
  2. End the drug war. Treat drug abuse like a medical and social problem (which is what it is) and not a criminal problem. Plenty of other countries are doing much better than we are with drugs because they’ve taken it out of the criminal justice system (we don’t have to invent something new – good models already exist). At the very least, legalize marijuana at the federal level, eliminate all drug task forces, and remove all financial incentives (asset forfeiture, etc.) that end up prioritizing drug policing over other kinds of policing.
  3. Related to 2, eliminate the DEA. It has become a violent rogue federal law enforcement agency that is rife with corruption and abuse of power, and regularly undermines local authority when it comes to policing. If not eliminated, re-purpose the organization to focusing on making sure federal pharmaceutical supply chains needed for medical purposes are not disrupted.
  4. Also related to 2, end the use of SWAT-style approaches (including all dynamic entry) except as originally intended (hostage situations). The explosion of serving warrants using SWAT-style approaches has made policing much more life-threatening for both citizens and police. There are other ways to safely serve warrants (no more Breonna Taylors, please!).
  5. End the militarization of police forces. Small-town police forces don’t need tanks, and images of soldiers in the street do not promote peaceful problem-solving.
  6. Accountability. This is probably the most challenging. A lack of accountability breeds a lack of respect. And when one player fails to protect and serve (and yet stay on the force), it damages all (the bad apple spoils the barrel). Trust is impossible when there is undiscerning blue fandom, unwillingness to turn in those who betray the trust, and an inability to permanently weed out those who need to be in another profession. This is going to require changing internal culture and the role of the unions, as well as developing better independent oversight.
  7. Work to dramatically reduce prison populations. End any agreements with private prisons that contractually require a certain percentage of cells filled (quotas). Release non-violent drug war prisoners. Change laws to end the practice of piling on sentences for low-level non-violent criminals. Use incarceration savings to fund transition programs, and work to re-enfranchise released prisoners.
  8. Related to 7, we must stop evaluating District Attorneys by how many people they incarcerated and for how long, but rather how they most efficiently used the resources of the judicial system to make us safe. Not quantity, but quality.

For me, that would be a good start. What would you add?

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