|
It is my pleasure to
introduce you to Attorney Marisa Darden by including
insights on criminal justice reform from her prism as a
Black woman within the U.S. Justice Department.
We Must Do Better Than Hasty Police Reforms
History will remind us of
May 25, 2020; the day a police officer killed George Floyd,
sparking a reckoning with policing, and igniting a broader
conversation about white privilege and the value of Black
people and individuals of color in this country.
Many are beginning to
acknowledge what Black people have known for centuries: We
cannot afford to lose another life at the hands of law
enforcement and institutional racism; criminal justice
reform is vital and urgent; and perhaps America’s policing
strategy has not caused Americans to actually be safer.
In the last few weeks,
legislators and leaders have raced to acknowledge the
moment, and with the best of intentions, enacted and
proposed reforms. However, this once-in-a-generation
opportunity cannot be squandered by hastily drafted bills,
rushed changes and police reforms that are not sensible, do
not support the basic mission of protecting citizens, and
most importantly, do not include relevant stakeholders, like
the police, at the negotiating table.
As a state and federal
prosecutor under both the Obama and Trump administrations, I
have had the pleasure and honor of working side by side with
law enforcement who work tirelessly every day, often without
thanks, to make their communities safer. And yet, the
stains of slavery are woven into the fabric of American
society, and permeate policing and the criminal justice
system in a way that have exacerbated other inequalities
Black Americans endure.
The net effect is that
even the best officers, and the best prosecutors, are
complicit in a structure that is designed to
disproportionately punish people of color for their actions,
making their lives, and their livelihood, vulnerable. As a
Black woman, navigating these spaces and wrestling with
their inherent tension became, frankly, demoralizing.
I found myself frequently
asking the same question – what can we do about it?
Like all relationships,
it’s complicated. There are approximately 18,000
independent police departments across the United States, all
with relative autonomy. These are separate and distinct
from federal law enforcement agencies, such as the FBI, the
Drug Enforcement Administration, etc., that enforce federal
laws and serve a wholly different function than local
forces. Thus, a one-size-fits-all approach will not
suffice, and lumping all “police” together squanders the
opportunity to make lasting change.
Similarly, focusing solely
on police strategy feels timely, but radically changing how
we prosecute cases originating from those arrests can make a
similarly lasting impact. Most prosecutorial reforms do not
require legislation, but simply the will of locally elected
officials and/or policy changes from within the U.S.
Department of Justice at the federal level.
Based on some of the
proposals permeating the conversation, below are a few broad
suggestions stakeholders and leaders should consider before
pushing through any systemic changes or legislation.
Focus Federal Legislation on Demilitarizing Local Police
There are several bills
currently pending in Congress, crafted in the wake of
Floyd’s death. They are broad, expansive and seek to
address several categories of reforms.
Some are challenging to
enact, given the federal government’s limited jurisdictional
authority over state and local police, which would be tied
to acceptance of federal funding. That is a powerful
carrot, but is less effective at altering local forces’
day-to-day tactics.
One issue the federal
government can immediately fix is to stop the U.S.
Department of Defense from transferring military-grade
weapons and supplies to local police departments. In 2014,
the death of Michael Brown in Ferguson, Missouri, sparked a
series of protests and public clashes with police. During
the uprising, the images of the Ferguson Police Department’s
armored tank rolling down the main thoroughfare were
disturbing and invoked an eerie feeling of foreign
occupation. Ferguson has less than 25,000 residents. Why
does it own a tank?
In the 1990s, Congress
authorized the military to provide surplus equipment to
local authorities. Police departments large and small
received armored vehicles, battering rams, explosives,
grenade launchers and other weapons-grade equipment. Though
some supplies likely make sense to provide, a full ban on
transferring unreasonable battlefield equipment would go a
long way toward demilitarizing local police, and encouraging
community policing, which emphasizes personal engagement
over forceful, militaristic interactions with constituents.
Ask Local Elected Prosecutors the Hard Questions and Demand
Accountability
Most cities have an
elected district attorney or prosecutor who is responsible
for evaluating police arrests and making charging decisions
regarding local and state crimes. Prosecutors and their
assistants in urban centers often are overworked, underpaid
and are overwhelmingly white, not reflective of the
communities in which they serve.
Some of the most impactful
reforms should occur at this level, since prosecutors have
almost sole discretion in deciding which cases are
prosecuted, and evaluating the legal veracity of the cases
police bring them. Community leaders should be asking their
prosecutors to make changes, and hold them accountable come
election season.
It seems obvious, but
prosecutors should be actively working to diversify their
staff, and consider establishing early relationships with
diverse law students to tout the benefits of a prosecutorial
career and the desperate need for diverse voices in a very
white, male-dominated profession. Local prosecutors should
be participating in diverse law job fairs, and actively
identifying good talent in other city law departments.
Communities should consider encouraging diverse candidates
to run for prosecutor. Officer leadership teams should be
intentionally diverse to encourage varied experience and
thought.
When questions regarding
police misconduct arise, district attorneys presenting those
cases to a grand jury is not the best way to ensure an
objective presentation of the facts, and state and federal
law has created an incredibly difficult burden-of-proof
standard for convictions. Prosecutors should have a cogent
and public plan for how to deal with these issues. Given
the close, necessary, working relationship local law
enforcement has with its prosecutors, they should pledge to
bring in a neutral entity to investigate all police-involved
death cases, make charging recommendations, and act as a
neutral third party in any investigation.
This is a simple change
that would still empower local prosecutors to make the final
call in charging decisions, but could create necessary
transparency and accountability throughout the process.
This strategic partnership could be with a neighboring
county prosecutor with similar demographics, a state
attorney general’s office, or the DOJ if it is able to
reinstitute and fund the Civil Rights Division in a
meaningful way.
Prosecutors should also be
required to engage with the community. As a county
prosecutor, I was necessarily focused on my heavy caseload;
we were rarely encouraged to professionally engage with
constituents outside the office. Many of my colleagues had
never set foot inside the Black neighborhoods we served.
Prosecutors should
consider, among other ideas, hosting public town halls and
forums, and requiring everyone, not just leadership, to
participate; promoting staff community service projects; and
requiring prosecutors to give presentations in schools about
the risk of criminal activity and sentencing consequences.
Prosecutors must be incentivized to become partners in
solutions to fixing systemic problems that often lead to
crime – such as a lack of quality education and resources,
concentrations of poverty, and scarce fresh food resources –
through organizational partnerships, board seats, and
inhabiting other leadership positions in the community.
Find a Way to Include Law Enforcement at the Negotiating
Table
Some of the reforms
currently being debated intimate that lawmakers did not
consult on-the-ground law enforcement before suggesting
them, or at least did not consider how the consequences of
those reforms would make legitimate and safe policing
difficult, or in some cases, impossible.
For example, the Justice
in Policing Act of 2020, [1] introduced by congressional
Democrats, seeks to ban the use of “no-knock search
warrants.” [2] A no-knock warrant is a search warrant
authorizing police to enter the premises to be searched
without first knocking or announcing themselves as police.
Typically, this request must be accompanied by some
legitimate reason for the need to enter in this
surreptitious manner. The Justice in Policing Act
specifically seeks to ban no-knock drug warrants at the
federal level, and conditions federal law enforcement
funding for state and local governments on the condition
that those departments similarly ban the practice.
This provision was no
doubt included in the response to the tragic shooting of
Breonna Taylor.
In March, members of the
Louisville, Kentucky, police department applied for,
received and executed a no-knock warrant at Taylor’s home
based upon the belief that drugs were being sold (by
others). Police maintain that they announced themselves,
then used a battering ram to knock down the door. Upon
entry, they allege someone shot at them first, and they
returned fire, killing Taylor.
Taylor’s boyfriend
disputes the police’s recounting of events, and her family
suggested that the main target of the investigation was in
custody at the time the search was executed. Police entered
Taylor’s home after midnight. Usually, entry into any
premises at that hour requires additional probable cause and
is a separate request that a judge must specifically
authorize, similar to the no-knock provision.
This case remains under
investigation, and is precisely the kind of case that would
benefit from independent third-party review from another
jurisdiction before prosecutors determine whether officers
were criminally culpable in Taylor’s death.
Though horrific, this one
incident should not be the impetus to strike an extremely
important tool in combating crime. Lawmakers should have
ample opportunity to explain the mechanics of these
provisions before Congress outright bans them. The no-knock
authority must be authorized by a judge, and is usually
approved by at least one prosecutor before it is issued, to
ensure the request is necessary and tailored to the facts.
Also, no-knocks are a
vital tool in protecting evidence and solving crimes.
Suspects often attempt to destroy or hide drugs, phones,
firearms or other contraband when they detect police
presence. More importantly, in today’s climate, “drug
cases” aren’t always about drugs. Police cannot risk
identifying themselves before entering a premises that may
include vulnerable victims or others who could be harmed
before law enforcement can intervene.
Moreover, federal law
enforcement drug investigations are not your run-of-the-mill
drug cases at the local level. Many federal drug cases are
investigated over a series of months or years; facts are
corroborated and painstakingly double-checked, and warrants
often undergo several layers of supervisory approval long
before they are presented to a judge.
This is in contrast to
local and state police departments, which often lack the
resources, time and manpower to implement such strict
controls, which make it more likely that mistakes might
occur. Reforms in smaller police departments are not the
same changes that are right for federal police or big, urban
departments. These nuanced discussions are missed when
relevant stakeholders are not included in the debate
surrounding reforms.
Though some departments,
police unions and other law enforcement leaders have
resisted acknowledging that reform is crucial, I cannot
stress enough that police are not monolith. Lawmakers
should be looking for the helpers.
Several chiefs of large
city departments have publicly agreed to examine their own
police department training and protocols on excessive force,
inherent biases and other areas to make recommendations for
change. The National Black Police Association, the
Fraternal Order of Police, and other organizations are also
calling for change, publicly stating that they are open to
reform and engaging in dialogue. Several departments are
currently under monitorship through the DOJ, and have made
significant strides in enacting changes recommended by
reformers who could speak to best practices.
These incredibly hard
decisions and policy discussions feel inherently personal
and urgent. We cannot make systemic change on a whim,
without thinking critically and deliberately, and engaging
stakeholders at every level. George Floyd and Breonna
Taylor deserve better than that.
Marisa T. Darden
Marisa Darden is a
Principal in the Government Investigations and White-Collar
Group at Squire Patton Boggs (US) LLP. Previously, Darden
was an Assistant U.S. Attorney for the Northern District of
Ohio, and is a former Assistant District Attorney in the
Manhattan DA’s Office in New York City. Marisa is a graduate
of the University of Michigan, the London School of
Economics, and Duke University School of Law.
Contact Rev. Donald Perryman, D.Min, at
drdlperryman@centerofhopebaptist.org |
