“It’s Not Just Ferguson – It’s All Of America”: The Drift Towards Police As Warrior Cops Instead Of Guardians Of The People
There’s a very good chance that your local police arrest black Americans at a rate more disproportional than in Ferguson, MO, where the police killing of unarmed Michael Brown unleashed decades of anger over police abuse.
The awful truth is that Ferguson Police Department’s nearly 3-to-1 disparity in arresting blacks is well below the norm in many cities and towns, including those far north of the Mason-Dixon Line.
With a grand jury poised to decide any day now whether the white officer who shot Brown six times will be indicted — which seems unlikely — new protests will focus attention on Ferguson. But what we really need is a debate about the role of police, their training and their discretion.
We need to restore the idea of police as guardians. We must bring an end to the changes that libertarian journalist Radley Balko details in his important book Rise of the Warrior Cop: The Militarization of America’s Police Forces
Reporters for USA Today brought to light the disproportionate arrest rates. They analyzed Uniform Crime Report data that local police departments sent to the FBI for 2011 and 2012.
Only 173 of 3,538 police departments arrested blacks at disproportionately low rates, while Ferguson PD and 1,581 other departments arrested blacks at rates significantly higher than their share of the local population.
In big cities like tolerant and cosmopolitan San Francisco and small ones like Duluth, the data reveal arrest rates by race far more troubling than those in Ferguson. In 70 cities from coast to coast, police arrest black people at 10 times the rate of people who are not black.
These numbers help explain the palpable resentment of young black men and the fears of parents.
Disparate arrest rates tell us that the legacy of slavery is far from over, no matter how blind our Supreme Court is with its decisions on voting, procedural rights and executions.
Ferguson is part of a subtle new racist phenomenon, a modern variation on “sundown towns,” which literally posted crude signs telling blacks not to be around after dark.
Back when Ferguson was mostly a white working-class town, the police chained a street leading to a neighboring black community to make a point about who belonged and who was unwelcome. Now Ferguson is mostly black, but its elected leaders and its police force are almost all white.
Today’s tactics of oppression and racial profiling defile our Constitution and waste taxpayer money.
Ezekiel Edwards, who runs the American Civil Liberties Union’s Criminal Law Reform Project, told USA Today, “We shouldn’t continue to see this kind of staggering disparity wherever we look.”
The question to ask ourselves is whether we look at all.
This disparity in arrests occurs even in Rochester, New York, which before the Civil War was among the few places that gave runaway slaves refuge and became the adopted home of the most famous among them, Frederick Douglass, and his abolitionist newspaper The North Star.
Blacks in Rochester were 2.4 times more likely to be arrested than whites in 2011 and 2012, the official data show. The Rochester city rates may reflect an ongoing gang war fueled by drug dealing in the fifth poorest city in America. But what about the surrounding suburbs, where arrest rates were vastly out of proportion?
I live five blocks south of the Rochester city line in the town of Brighton, a community of highly educated people from around the world and known for social consciousness. Brighton arrests black people at 6.4 times their share of the population, more than twice the rate of Ferguson, the Rochester Democrat & Chronicle reported.
One could excuse that by saying, who knew? But that is just an excuse.
The right questions: Why didn’t we know? What public purpose is being served by these arrests? Do the arrests have a solid basis or do they serve to harass? Who was arrested and what for? Are these arrests for serious crimes or petty reasons? How many of these arrests result in convictions? Do these arrests help justify the current size — and expense — of our police force? Do people of color believe the police want them to feel unwelcome?
After that comes the most important question, the one that is needed to move us from thought to action: What will we do about this?
Arrest rates are an indicator, not a diagnosis, of social ills. Reading the comments in several Gannett newspapers (which include USA Today as a separate section), it is clear many people assume a direct correlation between arrests and criminal activity. However, the problem may be not with those arrested, but with the police.
We imbue police officers with enormous discretion, as exhaustively detailed in six years of litigation over the New York Police Department’s stop-and-frisk policy. Former New York City mayor Michael Bloomberg’s administration believed it was reducing crime by detaining young non-white males, though it would never put it quite that way. If such strategies worked, then why didn’t NYPD harass the Wall Street bankers whose white-collar crimes sank the economy six years ago?
Curiously missing from the stop-and-frisk debate was whether it was nothing more than featherbedding; creating needless work to justify the size of the NYPD and its outsized overtime costs.
Eric T. Schneiderman, the state attorney general, issued a report examining 150,000 NYPD arrests from 2009 through 2012. Just one in 33 arrests resulted in a conviction of any kind, and just 1 in 1,000 in a conviction for a violent crime. But processing all those arrests created statistics that the NYPD used to assert that officers were being productive — not to mention earning overtime for end-of-shift collars.
You can examine the NYPD’s own data on stop-and-frisk from 2003 through 2013. In that last year police stopped, questioned, and frisked about 2,200 people per day – more than seven times as many as in 2002.
To get an idea of why so many white Americans see police differently from so many black Americans, read this very interesting and simple matrix showing differences in arrest rates between an area near New York University and a poor neighborhood near Yankee Stadium.
Current New York City mayor Bill de Blasio settled the case in January 2014 with a promise to stop the excessive use of stop-and-frisk.
Favoritism by police is not always racial. It can by favoritism for celebrities, as we’ve seen in the recent New York Times exposés of apparently criminal conduct by college and National Football League players who assaulted women, mistreated children and fled traffic accidents they caused. The victims discovered that the police were indeed guardians – of the offenders.
Abundant signs exist that police across America tend to treat those not privileged with white skin – and affluence – with greater suspicion.
How else to explain the story a worried Rochester executive tells? Several times a month his adult son, who works into the night, gets pulled over on the way home. As best the family can tell, some cops see reasonable cause for a stop in these facts: young black male in expensive new car driving alone after midnight.
How, other than racism, to explain a daytime traffic stop on Sunset Boulevard in which a middle-aged black man in a Rolls Royce, his daughters in the back seat, was ordered out at gunpoint? Without permission, officers ransacked his leather satchel until they found something that caused them fear and alarm – a badge identifying the driver as No. 3 in the Los Angeles County district attorney’s office.
Most white Americans have never had a cop pull them over for no reason except that they seemed out of place, as the late Johnny Cochran did in 1979. I have. In Beverly Hills and in Longport, NJ, officers whose initial demeanor was hostile pulled me over in broad daylight. The basis of their suspicions? My Toyota Corolla, its paint dulled by the years, looked out of place in towns whose residents drive luxury cars.
Police who instill fear are not police who catch bad guys, because it is citizens informing the police who solve crimes. Police who see “black skin” and “criminal” as synonymous need to be fired. And the burden for addressing these problems should fall squarely where it belongs – on the white majority whose values, and blindness, allow the drift towards police as warrior cops instead of guardians of the people.
By: David Cay Johnston, The National Memo, November 20, 2014
“There’s No Line Between Law And Politics”: A Reminder; Our Justices Are Politicians In Robes
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.
The straw that broke her faith? The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.
Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.
Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.
The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.
And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.
And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.
First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.
So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?
It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.
The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.
The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.
The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.
The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.
Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.
Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.
We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.
By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014
“A Tired, Old And Wrong Cliche”: President Obama Is No ‘Bystander’
New Jersey Gov. Chris Christie (R) delivered a widely noticed speech in September 2011, condemning President Obama, not just on policy grounds, but specifically on the issue of leadership. “We continue to wait and hope that our president will finally stop being a bystander in the Oval Office,” the governor said. “We hope that he will shake off the paralysis that has made it impossible for him to take on the really big things.”
Much of the political media agreed and echoed the assessment. Pundits crying, “Why won’t Obama lead?” became so common, a tired cliche was born. The president may have run as a young, ambitious leader, eager to change the world, but the Beltway was increasingly convinced: Obama is an overly cautious, overly cerebral president who would rather talk than act.
Two weeks ago, Dana Milbank went so far as to endorse Charles Krauthammer’s thesis of Obama as a “passive bystander.”
The real problem with Obama is not overreach but his tendency to be hands-off.
Since the second year of Obama’s presidency, I have been lamenting the lack of strong leadership coming from the White House, describing Obama in June, 2010, as a “hapless bystander … as the crises cancel his agenda and weaken his presidency.” I’ve since described him over the years as “oddly like a spectator” and as “President Passerby.”
Let’s put aside, for now, the fact that the bystander thesis completely contradicts the other common anti-Obama condemnation: he’s a tyrannical dictator whose radical agenda is destroying the very fabric of America.
Instead, let’s focus on why the bystander thesis appears to be outrageously wrong – especially today.
Faced with an intensifying climate crisis, a hapless bystander, content to watch challenges pass him by, might have decided to do nothing. Maybe he’d call for action in a State of the Union address or issue a white paper, but President Spectator would struggle to shake off the paralysis that makes it impossible to take on the really big things.
Except Obama’s done the opposite, unveiling an ambitious domestic agenda, striking a deal with China that few thought possible, and challenging the rest of the world to follow his lead. It’s an effort wrought with political and policy pitfalls, but Obama’s doing it anyway because he sees this as an effort worth making.
As we discussed back in February, there’s a group of pundits who’ve invested almost comical amounts of time urging Obama to “lead more.” It’s never been entirely clear what, specifically, these pundits expect the president to do, especially in the face of unyielding and reflexive opposition from Congress, but the complaints have been constant for years.
As the argument goes, if only the president were willing to lead – louder, harder, and bigger – he could somehow advance his agenda through sheer force of will, institutional constraints be damned. And if Congress resists, it’s necessarily evidence that Obama is leading poorly – after all, if only he were a more leading leader, Congress would … follow his lead. The line of criticism became so tiresome and so common that Greg Sargent began mocking it with a convenient label: the Green Lantern Theory of Presidential Power.
What seems obvious now, however, is the need for these pundits to reconsider the thesis.
Obama saw a worsening climate crisis, so he decided to take the lead. Obama is tired of waiting for a hapless Congress to act on immigration, so he’s leading here, too. Obama saw an Ebola threat, and he’s leading a global effort to save lives. Obama sees an ISIS threat, so he’s leading an international campaign to confront the militants.
The president showed leadership when disarming Syria of its chemical weapons. He’s showing leadership in trying to strike a nuclear deal with Iran. He showed leadership on the minimum wage, raising it for federal contractors while Congress sat on its hands. He’s showed leadership on health care, rescuing the auto industry, and advancing the cause of civil rights. [Update: several readers reminded me he’s leading on net neutrality, too.]
The policymaking process is filled with choke points, but when the president has his eyes on a priority, he doesn’t just throw up his arms in despair when one door closes; he looks for a new route to his destination.
Now, if Obama’s critics want to question whether he’s leading the country in the right direction, that’s obviously grounds for a spirited debate – each of the president’s decisions can and should be evaluated closely on the merits. “Leadership” is not an a priori good. Obama can take the lead on a given issue, but that doesn’t necessarily mean he’s right.
But if Obama’s detractors would have Americans believe he’s not leading at all, I haven’t the foggiest idea what they’re talking about.
By: Steve Benen, The Maddow Blog, November 14, 2014
“Everybody Should Vote!”: If The Concern Is Voting Interferes Too Much With ‘Normal’ Life, Shouldn’t It Be As Convenient As Possible?
One of the crazy-making things about elections in this country, and particularly low-turnout non-presidential elections, is that we’ve lost a presumption that used to be a goo-goo truism: it’s a good thing for everybody to vote. Nowadays you get the feeling–not just from Republicans but from pollsters and the MSM–that there’s something unsavory about people voting when they’re not “enthusiastic” about it. Along with this is the suggestion that encouraging people who aren’t enthusiastic about voting or politics or the candidate choices to nonetheless vote is some sort of dark bearing, a slight aroma of fraud.
There’s an age-old conservative ideological argument often embedded in the contrary presumption against universal voting–I discussed it at some length here. But people naturally are reluctant to fully articulate the belief that only those who hold property or pay taxes should be allowed to vote; that’s why such beliefs are typically expressed in private, with or without a side order of neo-Confederate rhetoric.
More often you hear that poor voter turnout is a sign of civic health. Here’s an expression of that comforting (if not self-serving) theory by the Cato Institute’s Will Wilkinson in 2008:
[L]ower levels of turnout may suggest that voters actually trust each other more — that fewer feel an urgent need to vote defensively, to guard against competing interests or ideologies. Is it really all that bad if a broad swath of voters, relatively happy with the status quo, sit it out from a decided lack of pique?
First of all, everything we know about the people least likely to vote is not congruent with an image of self-satisfied, happy citizens enjoying a “lack of pique” or trusting one another too much to resort to politics. But second of all, nobody’s asking anyone to stop living their lives and raising their kids and going to work in order to become political obsessives. Voting, and even informing oneself enough to cast educated votes (or to affiliate oneself with a political party that generally reflects one’s interests), requires a very small investment of time relative to everything else. And if the concern here is that voting interferes too much with “normal” life, shouldn’t we make it as convenient as possible?
Everybody should vote, and everybody’s vote should count the same–that goes for my right-wing distant relatives who think Obama and I want to take away their guns, and for people struggling with poverty, and for people fretting that those people want to take away “their” Medicare, and for people trying to rebuilt their lives after incarceration. And it goes for people who aren’t happy with their choices because failing to vote simply encourages the same old choices to persist. Hedging on the right to vote takes you down a genuinely slippery slope that leads to unconscious and then conscious oligarchy and even authoritarianism. And so to paraphrase Bobby Kennedy, we should not look at eligible voters and ask why they should vote, but instead ask why not? There’s no good answer that doesn’t violate every civic tenet of equality and every Judeo-Christian principle of the sisterhood and brotherhood of humanity.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, October 31, 2014
“Forcible Isolation”: Are Mandatory Ebola Quarantines Legal?
The coercive mandatory quarantine of Kaci Hickox, the nurse placed in what amounts to Ebola jail after returning to the United States from West Africa, raises troubling questions about the power that state and federal governments have to forcibly isolate individuals.
Hickox, who told CNN that her “basic human rights have been violated,” was only released Monday, two days after testing negative for Ebola. While quarantined, she was seemingly powerless to challenge her banishment to a tent in Newark.
The nurse’s treatment, as well as the quarantine policies of New York and New Jersey, have been roundly criticized as heavy-handed. A top National Institutes of Health official called the quarantines “draconian.” And former Ebola patient Rick Sacra, a doctor infected in Liberia, likened the mandatory quarantine for returning health-care workers in New York and New Jersey to a “police state approach.”
So is it legal for the government to quarantine individuals or groups of people?
State and federal officials do have the power to quarantine or isolate individuals suspected of having an infectious disease, according to a dizzying patchwork of laws. But beyond the general authority, there are many questions about how quarantines should be implemented.
At the federal level, much remains undefined defined: What would be the basis for quarantining individuals? Where would they be quarantined? What recourse would they have to prove that they should be eligible for release? What access to communications would they be given during quarantine?
“I’ve long been concerned about the quarantine authority because it is so broad, not easily subject to challenge, and exceedingly absolute,” Scott Gottlieb, a physician and a fellow at the American Enterprise Institute, told The Daily Beast.
Gottlieb, who served in the Food and Drug Administration under President George W. Bush, had a hand in a previous effort to set out clearer parameters for quarantine policy.
New quarantine regulations were proposed in 2005, amid fears of the pandemic flu and bioterrorism.
Those rules compelled airlines to keep records that would allow health officials to keep track of passengers. They also introduced the concept of a “provisional quarantine” that would have allowed the federal government to detain individuals for up to three days, with no method for appeal, if the Centers for Disease Control and Prevention believed that a person was infected with certain illnesses.
“It didn’t work because once you start to debate these things, people were so uncomfortable about the answers to these questions they decided not to answer them,” Gottlieb said.
The rules were withdrawn in 2010 by the Obama administration, after civil-liberties organizations protested and airlines complained about compliance costs.
Today governments have the right to put individuals in quarantine before they have the right to argue that they shouldn’t be placed there. Suspicion of exposure to Ebola, for example, is sufficient to justify mandatory isolation.
“That is lawful due to the sheer nature of public-health powers,” said James Hodge, a professor of public-health law at Arizona State University. “You don’t have to let them off the plane, circulate around… and then proceed to a courthouse… You can isolate now and provide due process after.”
The federal government is responsible for quarantining individuals traveling from outside the United States or between states, while state and local governments have control over individuals who are traveling only locally.
The nurse who had traveled to West Africa to fight Ebola became caught up in the quarantine policies issues by the state of New Jersey. She was held in a presumptive quarantine that rounded up an entire class of people—in this case health-care workers who battled the infectious disease in a hot zone—and forcibly segregated.
Overreaction is still a concern that worries public-health experts. For Gottlieb, the disaster scenario is an outbreak of an infectious disease in a major city that overwhelms local health authorities, who then quarantine dozens or even hundreds of people in crowded facilities.
“That’s not far-fetched,” Gottlieb said. “In that kind of scenario, they will over-quarantine people.”
There are still legal limits to how far quarantines could extend. Entire towns or neighborhoods could not be targeted for quarantine, Hodge said.
“Courts have been very reticent to let health authorities at any level to simply rope off a community,” he told The Daily Beast, adding that exposure does not mean simply proximity to infected individuals. “Just because you’re in the vicinity of someone who was infected doesn’t mean you’re exposed.”
Quarantining passengers who have been exposed to a dangerous infectious disease on a plane or a group of children who have been in the same classroom with an infected patient, for example, would be situations with stronger legal standing.
In order to maintain constitutional compliance, Hodge explained, the quarantine or forced isolation needs to be limited to those who were infected or known to be exposed to Ebola; the quarantined individuals need to have access to due process; and the government needs to justify the restrictions placed on these individuals.
Legal challenges to quarantine also could be based on these standards. The recently released Hickox is considering suing over her mandatory quarantine, her lawyer’s office told The Daily Beast on Monday. If she files a lawsuit, the New Jersey state government would have to defend its actions and perhaps, in the process, come up with improved quarantine protocols.
By: Tim Mak, The Daily Beast, October 28, 2014
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