Listening, Learning and Law Enforcement

May 12, 2015

Not long ago, I met the daughter of two of my wife’s high school teachers. Grant and Joyce Banks were legendary in Rutherford County. They traveled to the homes and met the families of every one of their students. Their purpose was to get to know and understand the circumstances of each of the people in their classes. They had no grading pad with them, just the warmth of their own personalities. When we got married, my wife took me to see them and we visited in their home. The last time I saw them was at my mother-in-law’s funeral – Mrs. Banks was too ill then to get out of the car but we stepped outside and talked with them.

Think about the possibilities of taking policemen around to meet every family on their beats, hat in one hand, the other outstretched and weapons back in the car, just to meet, and get to know the people. “Hi, I’m so and so.” “Are there things you’d like me to know?” “Have you had any problems with the police?” And just listen, without response except to make it clear you’re listening. In law school classes we call that active listening, so people understand that you hear them, understand what they are going through, and care about them. This isn’t the time for advice, instruction or explanations. Just “I hear what you’re telling me. I can’t make any promises but I will certainly bring up your concerns at the station or with my boss.” It’s a listening tour, but a very personal one.

That can be hard. I’ve had to endure criticism for some things I’ve run. It really didn’t matter whether the criticism was correct, helpful or plain nonsense – I’ve learned from hard experience that when people tell you what they want you to know, they are not waiting around for you to contradict them. They want to know you’ve heard. Responding is a separate problem and a skill in itself. The best lawyers understand that counseling their clients isn’t as simple as telling them what’s what. I remember one of the named partners of the corporate firm I started with telling our client over the phone from New York to California what my research made clear he had to do. Listening in Marty’s office I knew the client would not. A few weeks earlier, our client had his picture on the cover of Business Week. A few weeks later his company was delisted from the stock exchange. Counseling people, even when you’re right on the money, is not as simple as telling them.

For the police, it is crucial not to get into arguments with people – just to listen. Both the police and the residents have a good deal to learn about each other. And it can’t be done in the first conversation. In some fields this is called soft power. Police are used to thinking in terms of hard power – the power of guns and force. But without soft power, the power of empathy and trust – BOTH ways – their jobs are virtually impossible. I’d make every cop do it, and collectively I’d make sure they covered every family in the neighborhood – here, Baltimore, wherever. Cops have to learn to internalize the value of listening to people even, especially, when people are upset. If and when they learn to understand what people are struggling with, if and when they start cheering and rooting for the people in the neighborhood, we may be able to put most of the violence behind us.

Oh, visiting people like the Banks did might work in the schools too!

— This commentary was broadcast on WAMC Northeast Report, May 11, 2015.


Propensity to violate others – taking checks and balances seriously

April 28, 2015

Polls have found that more than 3 American men in 10 would rape or coerce a woman into sexual intercourse if they could get away with it.[i] Those findings have mostly been discussed only in conjunction with the issue of rape. But I think it has a broader meaning. I think it means that there is a proportion of people who will take advantage of defenseless others for their own benefit when they think that they can.

That creates problems in lots of areas. Like soldiers of countries that we think are less civilized then we, some proportion of American soldiers have resorted to forms of torture like waterboarding. Some go berserk, others are mean, but the misbehavior is predictable, if not who will do what. And like police of countries that we think are less civilized then we, some proportion of American police have also victimized demonstrators, people down on their luck, the homeless and racial minorities. That’s certainly not democratic policing. And it’s made worse by codes of silence in some police departments that are almost as sinister and sometimes worse than the codes among thieves.

I don’t think that most police are bad guys. But when we set things up so that people can get away with bad stuff, it is predictable that a significant proportion will. When we hand people guns and then make excuses for whatever they do because it’s a stressful job, we should expect that a significant proportion of them will do very bad things with the freedom we give them. A system of impunity encourages bad behavior. So one question is how we can set up our police forces so that policemen have the right incentives, incentives appropriate to a free and democratic country? Transparency and accountability matter.

The same is true of business, both international and local. When we take all the tools out of the hands of consumers and courts, we should expect a significant proportion of businesses to misbehave and take people for a ride, often for very dangerous rides. And in business the market mechanism can sometimes make things worse because it punishes those businesses which can’t bring their costs as low and their profits as high even when the mechanism is to take advantage of people, take their money, injure, and leave their lives in shambles. Responsible businesses need responsible regulation to keep the competition in line.

The same of course is true in politics. That’s why we value free speech so highly. But as my colleague, Timothy Lytton pointed out in a book called Kosher,[ii] a study of private marketplaces that do and don’t work, accountability depends on a sufficient number of people with intense interest in the subject, people the rest of us trust to check on what is happening, and a way to get the information out. It’s not automatic – there’s too much to know, too much work to find out.

So transparency is only the beginning. We have to have a culture in which we expect to hold people and organizations to account – without fear or favor for any of the groups and institutions that can hurt us. But in law, the Roberts Court seems to be developing the opposite – a legal culture of defenses and protections buried in contracts and doctrine. And in popular culture, stereotypes, ideology and polarization now substitute for facts. Heaven help us.

— This commentary was broadcast on WAMC Northeast Report, April 28, 2015.

[i] See Sarah R. Edwards,  Kathryn A. Bradshaw, and Verlin B. Hinsz, Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders, 1 VIOLENCE AND GENDER 188, 190 (2014) available at http://online.liebertpub.com/doi/pdf/10.1089/vio.2014.0022. Though the survey size was small and localized, similar results have been reported before. See Only Psychos Think Rape is OK…Right? in Web Info on Sexual Assault and Abuse (University of Illinois at Chicago, Office of Women’s Affairs, Campus Advocacy Network), https://www.uic.edu/depts/owa/sa_rape_support.html collecting some of the studies.

[ii] Timothy D. Lytton, Kosher: Private Regulation in the Age of Industrial Food (Harvard Univ. Press 2013).


Terry v. Ohio Deserves History’s Dustbin

April 14, 2015

Madison, Wisconsin; Ferguson, Missouri, Staten Island, New York; the list is endless and growing. And the tears keep flowing. Mostly young Black men deprived of their lives without benefit of any opportunity to defend themselves. They can’t defend themselves physically because that will be treated as a threat on the officers’ lives. They never get a chance to hire an attorney and defend themselves in court. It’s all over before it starts. More lives gone. More families grieving. That, apparently, has become American “justice.”

The Constitution says that we have the right to be free of “unreasonable searches and seizures … and no Warrants shall issue but upon probable cause ….” Probable cause became the standard for the constitutionality of an arrest or seizure of property. In 1968 the Warren Court decided a case known as Terry v. Ohio.[1] In that decision, the Warren Court said that the police do not have to have probable cause to stop and frisk someone. They said “reasonable suspicion” was enough. Although the Warren Court laid the foundations for a much more just society, making clear that segregation by race is “inherently unequal” and unconstitutional, mandating one person one vote and insisting on the enforcement of most of the Bill of Rights, Terry v. Ohio begat the reenactment of the racist patrols that kept the Blacks down on the farm throughout the post-Civil War segregated South, now expanded throughout the nation.

Terry v. Ohio is the source of the irritation of our Black fellow citizens by constant interruptions in their daily business, constant demands that they submit to searches, constant expressions not of cordial greetings from the police but constant demands that our Black fellow Americans obey and respect “the man.”

Terry v. Ohio is a source of many of the interactions between minorities and police that have gone disastrously wrong. It ramps up every exchange. There’s no “Hi, how are you?” It’s “turn around with your hands up” and from that moment everyone is on edge –minority individuals because they are out of control and don’t know what is going to happen to them, the cops because they are now ordering people around and expecting the worst. Indeed, when someone is ordered to put their hands up, any motion that doesn’t look right to the officer now looks dangerous. Everything ramps up. Adding insult to injury, we have statistics – nine-five percent of those stops are useless nonsense.

We would have less crime without Terry v. Ohio. There would be less anger without Terry v. Ohio. African-Americans would be less convinced that the world is determined to keep them down without the irritants enforced under Terry v. Ohio. We would be safer without Terry v. Ohio.

Indeed we were safer before Terry v. Ohio. In the world I grew up in, racial minorities were not a significant source of street crime. The world that so many of us, Black and white for different reasons, have learned to fear, is a post-Terry v. Ohio world.

There’s something else I’d do – I’d give the police a choice – no guns without full civilian accountability, fully empowered civilian review boards with the power to investigate, subpoena and see all documents and interview all witnesses without restrictions, without privileges, contractual barriers or anything else that prevents a full and impartial investigation. And I’d insist that cops turn on their cameras before they stop, seize, arrest or otherwise prevent us from doing our business without restraint.

— This commentary was broadcast on WAMC Northeast Report, April 14, 2015.

[1] 392 U.S. 1 (1968).


Prosecuting the Prosecutor – Thank Heavens

April 7, 2015

Here’s a news flash from the Innocence Project that left me both cheering and in tears:

The Texas State Bar filed a formal accusation of misconduct against the prosecutor in the case of Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Cameron’s defense, according to a disciplinary petition filed in Navarro County District Court this month.[1]

I was cheering because it is so rare that anyone takes action against any official in the criminal process who wrongfully assists in the conviction and execution of an innocent person. The U.S. Supreme Court blocks any litigation against prosecutors for murderous misconduct. I was crying because the man wrongfully convicted has long since been put to death.

Gov. Rick Perry refused to grant a stay requested by lawyers for Cameron who had been convicted for setting a fire that killed his three daughters. His lawyers asked Perry to stay execution because a report by an independent arson expert found no evidence the fire was intentionally set.

Calling Cameron a “monster,” Perry replaced members of a commission that dared to review the finding of arson.

At the trial, a jailhouse informant testified that Cameron had admitted the crime and that the informant had not been promised anything by the prosecutor for his testimony. Later a letter surfaced in which the informant reminded the prosecutor of his promise of leniency on other charges.

For me, there are so many lessons. One is that innocent until proven guilty is more than a slogan. Another is that the people who are supposed to be enforcing the law are sometimes actually lawless, doing great harm. A third, is that independent outside investigation of the behavior of the police and the prosecutors is a crucial form of accountability in a democratic society. And a fourth is that it is important that independent groups have the courage to follow up and do their best to right those wrongs without being attacked because they are impartially investigating people whose job description makes them seem sacrosanct.

When she was told that the state bar was taking action, Cameron’s step-mother responded: “Who would have ever thought that all this corruption would happen in small-town America?”

There’s another stereotype that needs to go. The devil lurks in all communities and among people of all colors. Cameron incidentally was white. A decent, honest, law enforcement system is important to all of us without regard to race, sex, faith or any other aspects of our background. And if they could do that to a white family, what kind of justice do we think our African-American brothers and sisters are getting.

To me this is a reflection of the problems we have been addressing with respect to police killing of unarmed people, even a child recently, and the Supreme Court’s indifference to injustice in what should be a system of criminal justice, not a system of official lynching. We need to be willing to see and stop misbehavior wherever it happens.

— This commentary was broadcast on WAMC Northeast Report, April 7, 2015.

[1] See https://www.themarshallproject.org/2015/03/18/willingham-prosecutor-accused-of-misconduct and http://www.innocenceproject.org/news-events-exonerations/prosecutor-in-willingham-case-faces-misconduct-charges?utm_source=Main+IP+Email+List&utm_campaign=3a08bbb832-2015_February_Newsletter_02272015&utm_medium=email&utm_term=0_016cb74fd6-3a08bbb832-350279237


NYPD – What Now?

January 29, 2015

Two weeks ago I described my concerns about the New York City Police Department. It’s actually a much bigger problem – police all over the country have been using their power and their guns instead of their heads. Many people in our communities have been paying the price for years. Big problem, all over the place, persistent, rooted in the system, so are we stuck with it?

So let me offer some suggestions.

First, police brass can act. They can look at the records to see which policemen frequently charge people with the kind of minor crimes police use to cover up their own abusive behavior – charges like resisting arrest.[1] The brass could demand that police make good relations with people on the street a priority. Unfortunately, however, that won’t work without buy-in by a large portion of the department. Otherwise it will disappear – resisted, pushed out, forgotten.

By comparison, Vietnam taught the generals the importance of race relations – you can’t have a multi-racial military with an internal race war. Soldiers who’d be happier if the next guy in the foxhole took it for Old Glory are not “with the program.” That’s an internal problem rather than community relations but it’s instructive. The military didn’t get all ideological about how to do it and they didn’t run up the old race pride. They just asked what works.

So they made race relations a part of the responsibility of every officer. You want a promotion? You’re going to have to see to it that all the soldiers in your unit work together, that all the talent gets recognized, and promoted, regardless of color. And they got buy-in because people throughout the military understood the need.

Often when I run into people in the service I ask them about it. Blacks tell me life is much more civilized in military than in civilian life. They know that their accomplishments will be respected, that it’s worth their effort and cooperation.

For the police, responsibility would have to include relations with the communities served, and all the people in them. Imagine police having to think about community relations when they decide to stop and frisk someone because he’s Black or isn’t dressed nice, or before they pull a gun on or kill someone who is unarmed.

Unfortunately, I’m not confident we could get buy-in for such a good top to bottom renovation of the Force. Let me offer a wake-up call. New York City created community school boards, decentralizing the school system, a few years back. They put the communities in charge of the schools. That had problems but it had one big advantage – it broke up pre-existing power centers. It meant that people had to pay attention to the community. Imagine if the police had to make nice to the communities they serve. That’s an interesting suggestion, isn’t it? And the responses would highlight the problems. First the prejudices would show – “they,” meaning minority communities of course, can’t handle that. Some officers would have to bury those attitudes. That alone might do a lot of good. And police would respond that their perks are at stake. Well that is the problem – one of their perks has been the ability to abuse people without consequences.

Whatever you do in your community, apologies don’t solve the problem – get police attention with a significant proposal that puts the community in charge and let the police try to fight that with guns ablaze!

— This commentary was broadcast on WAMC Northeast Report, January 27, 2015.

[1] See “NYPD Disciplinary Problems Linked To A ‘Failure Of Accountability’” with Robert Lewis and guests Darvel Elliot, Samuel Walker, Candace McCoy, Richard Emery and William Bratton, on Morning Edition, January 16, 2015, 10:00 AM EST (National Public Radio).


Police Accountability

January 6, 2015

I’ve been reading a case decided in the European Court of Human Rights. It involved opposing libel suits arising out of claims of police brutality in Bergen, Norway.[1] The opinion of four judges, whose names I will not try to pronounce, struck me. The judges pointed out that the purpose of the libel suits brought by the police officers “was to suppress the debate on this issue….” But they pointed out that the government has “a monopoly over force” and that monopoly “also entails the danger of force being abused to the detriment of the very values it is meant to uphold.” Therefore “abuse of force by officials is not just one of many issues of broad general interest.” Instead, “it is … a matter of primary concern in any society.” Keeping authorities in check is particularly important for a democracy. And the ability to hold the states’ use of force in check requires protecting those who raise the alarm.

The European Commission for Democracy Through Law observed that “In numerous states … [there is a] general ban on the creation of para‑military formations.”[2] That’s because they are armed and dangerous.

So the judges in the Bergen case emphasized the “vital need for every society to exercise strict supervision over all use of force in the name of society.” Critics of official abuse need to be protected. The 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment specifically protects the right to complain.

But not about the New York City police.

It’s time we learn that there are wonderful police, and there are terrible police. But the culture of silence by which they protect each other against any and all criticism makes the wonderful police into allies of the terrible police. They’re unaccountable to each other and they’re unaccountable to the rest of us.

You and I can’t go walk down the street saying that guy down there could be armed, so if he puts his hands in his pocket I’m going to kill him. That’s not self-defense; that’s murder. But the police, who have sworn to defend us, insist they have that right to kill on the mere possibility that someone could be armed with evil intent. They insist they do not even have to account for it or defend themselves – it is disloyalty even to criticize or call for an investigation as Mayor de Blasio has done.

What the police are doing is showing that they are a special interest, not public servants. Everyone else is accountable, from the President down to the janitor, everyone is subject to investigation and criticism, everyone’s methods are open for revision. Heads of government departments and heads of corporations are accountability to us, to the public. But not the guys that claim the right to kill us. That has a clear meaning for me – I don’t trust them. They have a code of silence and self-protection and they just dare us even to question them. That means they should not be trusted. Just one more special interest trying to bilk the public. New York City’s Police have LOST my respect.

Soldiers in the military, regardless of politics, do not turn their backs on the Commander-in-Chief. That’s unacceptable. But it’s typical of the NYPD – they’re spoiled, dangerous and out of control.

— This commentary was broadcast on WAMC Northeast Report, January 6, 2015.

[1] Opinion of Judges Kūris, Türmen, Strážnická and Greve, dissenting in Nilsen and Johnsen v. Norway, [1999] ECHR 23118/93[GC] (25 NOVEMBER 1999).

[2] Explanatory Report, incorporated as part III of Guidelines On Prohibition And Dissolution Of Political Parties, note 361 above, at ¶11, available at http://www.venice.coe.int/docs/2000/CDL-INF(2000)001-e.pdf.


War on What – Crime or the Poor?

November 18, 2014

Many of us realize that sending troops abroad can be counter-productive. Our boots on the ground in Iraq and Afghanistan led many to take up arms against us. To them, we were the invaders.

See if this analogy fits. We don’t have data everywhere but what we have is telling. The Rutherford Institute, which bills itself as “A non-profit conservative legal organization dedicated to the defense of civil, especially religious, liberties and human rights,” told the U.S. Supreme Court recently, that “the most common justification cited by New York City police for stopping individuals was presence in a ‘high crime area’” and “an additional 32% of stops were based on the time of day, and 23% of police stops were for an unspecified reason.”[1] Read the rest of this entry »


Follow

Get every new post delivered to your Inbox.

Join 254 other followers