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Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Demonstrators confront police during a protest over the death of Laquan McDonald on November 25, 2015 in Chicago.
Scott Olson / Getty

Responses to Violence Must Move Beyond Policing

The solution to problems like unsolved homicides, especially in communities of color, cannot be reinvestment in institutions that wage violence against them.

Responses to failure often take the form of reinvestment in what is failing. When Wall Street fails, the banks receive support in the form of bailouts; when the healthcare system fails us, the insurance companies get to shape the system’s “reform.” So when police fail to solve crime, they get usually get even more support, more funding, more “manpower.” Name a crisis in policing—from police killings of civilians to corruption to high rates of homicides—and policing itself is always held up as the answer. After the killing of Freddie Gray in Baltimore, amid skyrocketing homicide rates, officers robbing residents, planting drugs, and even selling them, the police union said that the cause of the city’s grave “tipping point” was too few cops.

Language also has everything to do with how we understand this predicament. What we describe as failing is often working just as it has been intended to. Unfortunately, policing provides us with countless examples of this, among them low clearance rates for unsolved crime. “Clearance” refers to a crime cleared by arrest or cleared by “exceptional means” such as when an the perpetrator of the offense is identified but “elements beyond law enforcement’s control prevent the agency from arresting and formally charging the offender.”

The Washington Post  recently “identified the places in dozens of American cities where murder is common but arrests are rare.” The Post further noted that:

Police blame the failure to solve homicides in these places on insufficient resources and poor relationships with residents, especially in areas that grapple with drug and gang activity where potential witnesses fear retaliation. But families of those killed, and even some officers, say the fault rests with apathetic police departments. All agree that the unsolved killings perpetuate cycles of violence in low-arrest areas.

Detectives said they cannot solve homicides without community cooperation, which makes it almost impossible to close cases in areas where residents already distrust police. As a result, distrust deepens and killers remain on the street with no deterrent.”

Unsurprisingly, the overwhelming majority of the low-arrest zones are primarily low-income Black areas. This is inseparable from the legacy of intentionally withholding resources from Black communities and constricting their growth. Discriminatory practices like redlining and Jim Crow laws may not look like they did decades ago, but their effects are still being felt to this day. Thus, we can see the intention to let crime go unsolved not as just a faulty aspect of policing, but as an inherent characteristic of policing in a society predicated on racial capitalism. It’s not the work of policing to solve crime as much as it’s the work of policing to solve crime according to the racial guidelines by which this society criminalizes and otherizes. This takes shape in oppressiveness like the conflation of Black people with gangs, Islam with terrorism, or Latinx people with cartels. Crime is something that has always been associated with blackness and therefore being Black has become a crime. And when blackness is a crime, “solutions” for the Black community are focused on criminal justice, like clearance rates.

“Chicago’s education advocates use a phrase suitable for this [policing] context: ‘broke on purpose,’” Stephanie Kollmann of Northwestern University’s Pritzker School of Law, told me. “It means the government misdirects its resources in order to achieve and justify its policy objectives—cutting some programs, demanding resources for others. Austerity rhetoric is very favorable to policing: Programming, youth recreation, and community services will always be able to be cut back as luxuries, while enforcement is increasingly viewed as a necessary investment as conditions continue to deteriorate. Here in Chicago, scarcity logic was also used in order to simultaneously starve police misconduct investigations and invest in suppression squads and surveillance activities. Pouring more money into a structure like that only makes those problems bigger: more reliance on abusive tactics and less oversight, resulting in more mistrust and fewer closed cases. Then you’re right back to saying you need more.”

Measuring the health of a community on metrics like crime rates and criminal convictions is problematic. In 1975, there were nearly 2,000 murders in New York City but the city’s poverty rate was 15 percent which, as Harper‘s notes is “a figure lower than it has ever been since then.” It is also problematic because such metrics function under the same racist framework in which policing is grounded. This is part of the reason we need to delegitimize the police. It doesn’t make any sense to argue that the same police who are failing by not arresting enough are arresting too much in the communities that they treat like occupied territories. It’s contradictory to say that we have a problem with racism in policing and then say that the solution to low clearance rates is more policing. We cannot fix what was made to be broken or reform what is purposefully violent against us. If we do so, we increase the legitimacy of the institution of policing.

The mythology of the criminal justice system misleads us to believe it is driven by a desire for justice. But discussions around safety that pull us away from the crime of policing under racial capitalism are not true to actual progress. By moving beyond thinking about issues like clearance rates, we can start thinking about providing resources for communities. That would be a world where crime decreases because people have what they need instead of one in which police are something people think are so necessary. Furthermore, we should ask ourselves why such conversations about crime don’t include the police themselves, who absolutely murder with impunity. We shouldn’t have conversations about murder going unpunished that do not include the police because they provide a model of unaccountable violence in our society.

More policing and more surveillance are not solutions to violence. Carceral logic does not address the problems our communities face. Responses operating outside the institution of policing and in the interest of the material well-being of the people are needed. This means not relying on police to solve conflict or social problems but instead pushing to divest funding from them and putting those funds into education, mental health, and other resources for the places we live. Abolition is necessary, but for it to happen we must be willing to do the work of ensuring our communities have what’s needed. Without that, the possibility of achieving something better than what we know now is compromised by what we lack. The answer lies in destroying inequality through resource reallocation, not reinvestment in the violence waged against us that we’ve long been told is necessary for our well-being. What’s truly necessary is attaining the resources that our suffering communities need to thrive, and since we know policing has not brought us that, we should forgo what’s not working and create a world anew.  

Eric Holder May Be Considering a Presidential Run. But Has His Time Passed?  

As voters begin to realize that prosecutors in the world's most incarcerated nation may not be the best people to run the government, the era of the prosecutor politician could be on its way out.  

Attorney General Eric Holder testifying in 2012 before the House Oversight and Government Reform Committee. He served as AG from 2009 to 2015.
Mark Wilson / Getty

Eric Holder May Be Considering a Presidential Run. But Has His Time Passed?  

As voters begin to realize that prosecutors in the world's most incarcerated nation may not be the best people to run the government, the era of the prosecutor politician could be on its way out.  

Eric Holder’s recent visit to New Hampshire has sparked speculation that he might mount a presidential run in 2020.

During a June 1 visit  at the “Politics and Eggs” series at Saint Anselm College in Goffstown, the former U.S. attorney general blasted gerrymandering—“I think our democracy is under attack”—but puzzlingly endorsed the restrictive voter registration law that New Hampshire Republicans have pushed through the state legislature that now awaits review in the state’s highest court.

A 2020 run for Holder is a long shot but it’s this sort of mushy centrism that probably  dooms his chances at the White House. “The Democratic Party is being pulled left … by the Bernie [Sanders] crowd,” Boston University political science professor Thomas Whalen told the Boston Herald. “They probably don’t want a moderate like Holder.”

If Holder does run, it would be on his record as head of President Barack Obama’s Department of Justice, a position he held through April 2015. It’s a record based on his toughness on crime and terrorists but also on Holder’s embrace of criminal justice reform, a matter of growing importance to the Democratic primary voters ill at ease with our world-beating incarceration rate and extremely punitive response to seemingly everything.

Holder’s credibility as a tough prosecutor is merited but his reputation as a reformer is, alas, largely nonsense despite his widely reported public statements against mass incarceration. “It’s both jaw-dropping and heart-warming to see that an issue that is that important can get people from such disparate political views together,” Holder said in 2014, “We have 5 percent of the world’s population, 25 percent of the people in incarceration. That’s not something that we can sustain.”

Holder is obviously more progressive than current Attorney General Jeff Sessions—who isn’t?—but his leadership of the DOJ was marked by risk-aversion and conservatism.

For starters, when Congress enacted the Fair Sentencing Act of 2010 which reduced the sentencing disparity between offenses for crack and powder cocaine from 100:1 to 18:1, Holder’s DOJ sent its prosecutors to court to argue against its retroactivity.

“President Obama’s Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible,” wrote Douglas Berman, a professor at Ohio State University’s Moritz College of Law. According to a recent autopsy of Obama-era criminal justice reform efforts by law professors Rachel Barkow and Mark Osler, Holder often seemed more concerned with placating the hardline career prosecutors within DOJ than granting the scope of clemency intended by Congress. “The Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action,” Barkow and Osler wrote, “was largely rooted in an unfortunate deference to the Department of Justice.”

The Holder DOJ was also aggressive in pursuing whistleblowers like Edward Snowden but also less controversial figures like Thomas Drake, who exposed National Security Agency dragnet surveillance, and John Kiriakou, a CIA torture whistleblower. Holder’s DOJ fought to uphold the broad and vague statute against “material support” for terrorism, thereby criminalizing a surprising amount of charitable giving abroad. Tarek Mehanna received a 17-year sentence for running a militant-sympathizing website that didn’t contribute to any specific crime. These and similar cases were small in number, but as law professor and formal federal defender Wadie Said argued, such national security and terrorism prosecutions cast a long shadow over the entire justice system, shifting the parameters for what is procedurally acceptable in the state’s treatment of more run-of-the-mill criminal defendants.   

If Holder’s DOJ showed little mercy to drug offenders and whistleblowers, his DOJ was tender and mild with big banks after the financial asset bubble collapse. “There were no subpoenas, no document reviews, no wiretaps” is how one DOJ source described Holder’s approach to Wall Street crime. At the end of 2014, Columbia Journalism Review business reporter Ryan Chittum observed that “Holder leaves office having been far outclassed by the Bush administration even in prosecuting corporate criminals, despite overseeing the aftermath of one of the biggest orgies of financial corruption in history.”

The punitive zeal that has dealt over 2,000 Americans federal life without parole sentences for nonviolent drug crimes was nowhere to be found in the Holder DOJ’s kid-glove treatment of the masters of the universe. Indeed, in a DOJ investigation of HSBC for laundering billions of Mexican drug cartel profits, Holder overruled career DOJ prosecutors who sought criminal charges against the big bank. HSBC eventually simply settled with the government for $1.9 billion which Rolling Stone rightly noted proved that “the drug war is a joke.”

What about clemency? Big, categorical amnesties have historical precedent at the state and federal levels, including Jimmy Carter pardoning the Vietnam draft evaders,  Woodrow Wilson granting clemency to Prohibition-law offenders, and Mississippi Governor Mike Conner’s “mercy courts” at Parchman Farm in the 1930s. Obama had the chance for bold and categorical measure here, but he blew it, largely because again he entrusted it to Holder’s DOJ which has hardwired institutional bias of prosecutors and former prosecutors.  The nearly 1,700 commutations granted by Obama may seem impressive, but this is a trickle amid an exponentially expanded federal prison population. The Federal Bureau of Prisons held 192,170 in Obama’s last full year in office; up from 50,513 in 1988. In fact, Ronald Reagan granted clemency to a higher percentage of the federal prison population than Obama. A recently published NYU Law School study on the Obama administration’s clemency initiative concluded that it was a “bureaucratic maze that was controlled by the Department of Justice, and this design increased the likelihood of a clemency petition being denied at any given point in the process.”

Holder may have mouthed the words “mass incarceration” to the likes of The Marshall Project and others, but when it came to actually delivering impactful and badly needed criminal justice reform, he was a failure.  

All of this may have less to do with Holder himself than with the inevitable consequences of putting a career prosecutor, and a federal agency full of career prosecutors, in charge of criminal justice reform. And this forces a bigger question: What structural biases are prosecutors bringing to American politics?

Unlike other wealthy liberal democracies, prosecutors play an outsize role in our political culture. From the early 20th century, the local district attorney’s office—all but four states elect their prosecutors—has been a frequent springboard to the state attorney general’s office, the governor’s mansion, the Supreme Court, the U.S. Senate. Today there’s no shortage of former prosecutors in American politics including the avuncular liberal Pat Leahy (D-Vermont) and the antediluvian Sessions.

According to a dataset made public by legal historian Jed Shugerman, who is writing a book on the rise of the prosecutor politician, our political class is saturated with crusading DAs. From 2007-17 in 38 states, his research shows that 38 percent of state attorneys general, 19 percent of governors, and 10 percent of U.S. senators have prosecutorial career backgrounds. The big presence of prosecutors in our politics goes a long way in explaining why our government has been so ready to see our collective problems (and even some non-problems) as criminal justice issues, always requiring the response of more police, prisons, and criminal law statutes.  

Have we reached peak prosecutor politician? It does seem like the bloom might be off the rose. Take Senator Kamala Harris, former California AG and San Francisco DA, who now clutches the mantle of reform like a high-end scarf as she possibly looks at a presidential run. But as her lackluster reform record becomes more widely known—opposition to state sentencing reform measure Proposition 66; punishing the parents of truant children with up to a year in jail; failure to prosecute OneWest, a foreclosure mill bank that until 2015 was run by Treasury Secretary Steve Mnuchin—she’s got a problem.

And so, too, will Eric Holder if Democratic primary voters learn that as U.S. Attorney for Washington, D.C., in the mid-1990s he initiated Operation Ceasefire “where police would stop cars on any pretext, of a minor traffic violation, speeding, tinted windows, you name it, because they wanted to search those cars for guns.” Such actions once signified  “toughness” to Democrats eager to wimp-proof their right flank, especially in the post Willie Horton-era. But now, nearly 30 years later,  for a growing number of Democratic primary voters, such prosecutorial harshness is, like mass incarceration and unjustified police shootings, a moral abomination. It might also be a political dealbreaker.

We surely haven’t seen the last of prosecutor politicians who grandstand and indict their way into cable news glory and donor-class cocktail parties. But a little light bulb is going on over an increasing number of Americans’ heads that ambitious prosecutors in the most carceral country on the planet are perhaps not the best people to put in charge of fixing our justice system, much less running our government.

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The Family Of An Unarmed High Schooler Shot By Police Begs For 'Real Change'

The King County Sheriff's Office told reporters Tommy Le had a knife. He was actually holding a pen.

Tommy Le shortly before his death.
Provided by the Le family

The Family Of An Unarmed High Schooler Shot By Police Begs For 'Real Change'

The King County Sheriff's Office told reporters Tommy Le had a knife. He was actually holding a pen.

For those who loved Tommy Le, the 12 months since he was killed by police on a suburban Seattle street have been what his aunt Uyen Le described last week as “a year of unending grief, shame, and humiliation.”

Le, the 20-year-old son of Vietnamese refugees, was hours away from graduating from high school when he was shot by a deputy sheriff on June 14, 2017. The young man’s family was heartbroken by his death, and Washington State’s large Vietnamese-American community shared a piece of their pain.

But Le’s family says their hurt was amplified by an allegation made by King County Sheriff’s Office officials hours after Le was killed. Officials with the sheriff’s office, which provides police services to many Seattle suburbs, released a statement indicating Le charged deputies with a knife. Nine days passed before the claim was corrected.

In fact, Le was carrying a black ink pen when he was shot, not a “knife or some sort of sharp object” described in a media release on the sheriff’s office Twitter feed. No knife was found.

Those statements were the subject of an independent review of the communications related to King County deputy-involved shootings. In a report released Tuesday, researchers with the University of Florida’s Brechner Center for Freedom of Information noted the sheriff’s office misinformed the public and then didn’t correct the record. Le’s family addressed King County leaders during a Seattle hearing on the report.

Responding to the Brechner Center findings, King County Council Chair Joe McDermott blamed the sheriff’s office for the untrue statements.

“Tommy’s aunt spoke about a year of grief, shame, and humiliation,” McDermott said during the Tuesday hearing. “It strikes me that Tommy’s death alone would cause the grief. But the shame and humiliation were caused and compounded by inaccurate information that was disclosed in the first place and then wasn’t corrected.”

Le's mother and aunt address county officials at a hearing last week.

The night he was killed, Le was walking near his home in Burien, a racially diverse, economically mixed city abutting Seattle’s southern city limit. According to law enforcement, deputies rushed to the area just after midnight when a resident reported firing a warning shot at a ranting man brandishing a knife. The sheriff’s office contends Le was identified to deputies as the unstable, armed man.

Three deputies confronted Le, who, at 5’4, was significantly smaller than the man who killed him, identified by the sheriff’s office as Deputy Cesar Molina. According to the office, Molina and another deputy fired Tasers at Le twice before Molina shot Le, who was then handcuffed as he lay dying. An autopsy by the county medical examiner would later show Le’s liver, left kidney, and spleen had been shredded by two hollow-point bullets.

In a statement to The Appeal on Friday, King County Sheriff Mitzi Johanknecht said her office may revisit its use-of-force policies once a review of Le’s shooting is complete. Johanknecht said she hopes the review will address questions the Le family has about Le’s death, while pledging to work on improving communication and transparency.

“No one wants to see a 911 call for assistance result in a death and I am saddened by the loss of any life,” said Johanknecht, who was elected to her first term as sheriff in November. “I am confident … the review processes in place will determine whether there is a need to revise the training or policies regarding the use of deadly force in unknown and potentially dangerous situations, such as this one.”

The initial sheriff’s office statement after the shooting asserted Le had a weapon in hand when he was shot.

“A homeowner fired a warning shot at a man running at him with a sharp object in his hand. When deputies responded to the scene, the suspect came at them as well,” last year’s statement reads.

Brechner Center researchers noted “the release did not specify Le’s weapon but stated that he was ‘holding a knife or some sort of sharp object.’ Much of the resulting press coverage seized on the idea that Le wielded a knife, and the Sheriff’s Office did not correct any of the inaccurate reports.”

Jeff Campiche, an attorney representing Le’s family in a civil lawsuit against King County, told The Appeal that the sheriff’s office “wanted to make themselves look better because they shot an unarmed, 120-pound high school student in the back.”

“Is it possible, after the young man is lying on the ground bleeding to death, that the sheriff’s office didn’t know he was unarmed?” Campiche asked.

Demanding Candor After Shootings

Johanknecht said her office “values transparency and the public’s trust.”

“It is not the policy of the KCSO to intentionally mislead the public, media or anyone regarding its interactions with the communities we serve,” she told The Appeal, referring to the King County Sheriff’s Office.

Despite heightened public interest in police violence, police practices vary widely when it comes to disclosure after officer-involved shootings.

As part of their review, Brechner Center researchers contrasted the Louisville Metro Police Department’s aggressive disclosure of reports related to police shootings with the Los Angeles Police Department’s approach, which they described as “reactive and restrictive.” Authors of the report, led by Brechner Center director Frank D. LoMonte, describe a national trend toward greater proactive disclosure and away from requiring the public to fight for access to information.

The new transparency is in part self-serving. Researchers noted that the Chicago Police Department compounded a public relations disaster after the fatal shooting of 17-year-old Laquan McDonald by fighting the release of a dashcam video for more than a year. The apparent cover-up cost Chicago Police Superintendent Garry McCarthy his job, and the city paid millions of dollars to settle the McDonalds’ lawsuit. The officer who killed McDonald has since been charged with murder.

Deborah Jacobs, who was picked last year to head King County’s police oversight office after 13 years as executive director of the American Civil Liberties Union’s New Jersey chapter, said Tuesday that communities around the country are demanding candor.

“The initial information released by law enforcement shapes the narrative and becomes the public understanding of an incident,” Jacobs said. “The release and perpetuation of inaccurate or misleading information about an incident has serious potential consequences for all involved.”

Jacobs advocates for what she characterized as small but critical moves toward disclosure suggested in the Brechner Center report. One key change would require the sheriff’s office to regularly update the public on high-profile incidents, including officer-involved shootings, through press briefings and social media. The office would also be required to immediately correct inaccurate or misleading information it publicized.

Calls for Accountability

Le’s death helped prompt an expansive review of another piece of King County’s response to officer-involved killings: the shooting inquest.

Inquests are fact-finding trials in which jurors rule on the facts of a contentious incident without awarding damages or assigning a punishment. Prosecutors call witnesses and present evidence to the jury, which then judges the legality of the shooting.

“Their basic function is to figure out, as best they can, the truth about how someone died and to explain that truth to the public,” Paul MacMahon, an assistant professor of law at the London School of Economics who has written extensively on inquest systems, wrote in an email to The Appeal.

“That process can be itself a form of accountability for those guilty of wrongdoing. … Inquests can help institutions and the public to learn from mistakes, and to help victims’ families and society at large come to terms with difficult events,” he continued.

But advocates for police reform often find little to like about state inquest systems. King County’s inquest process, derived from a 164-year-old state law, provides no opportunity for the public to challenge the law enforcement account of a shooting. Le’s family has pushed for reform of this process, which their attorney calls a one-sided “whitewash.”

County Executive Dow Constantine paused all inquests in King County, including Le’s, in December and initiated a review he pledged will “make inquests more transparent, fair, and meaningful for all those involved, and to provide greater confidence in our justice system to the entire community.”

Inquests have proved useful in examining deaths at the hands of police elsewhere. A Milwaukee inquest jury faulted several officers involved in the 2011 death of Derek Williams, who died in the backseat of a squad car after police failed to provide him medical attention. Leaders in Clark County, Nevada, recently crafted an inquest system as part of a larger accountability effort.

A task force that includes a retired police leader and two people whose loved ones were killed by police recommended reforms to King County’s inquest system in March, but the county has yet to enact them. A representative for Constantine said the executive expects to issue an order in the near future. A sheriff’s office review board is expected to examine Le’s shooting in coming weeks.

So, as Le’s family members end their first year of grief, they wait.

“We’re begging for more,” Uyen Le, who was raised with her nephew, said during Tuesday’s hearing. “Real action. Real change. Accountability. Only then will our family receive the justice that we and Tommy deserve.

“We are a strong Vietnamese family, a good family, and we’re supported by the greater community. We will not give up until the county decides to take responsibility for what happened to Tommy.”

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