By Rosetta Miller Perry
“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.
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.