America has awakened in the past year to the epidemic of police killings of unarmed civilians, many of whom are African-American. The list of names grows longer by the week — Eric Garner, Michael Brown, Tamir Rice, Freddie Gray, Rekia Boyd, John Crawford and Sandra Bland to name just a few. Each time one of these criminal acts is committed, a cry goes up to prosecute the police officer responsible and bring justice to the victim.
Yet, in most cases the official investigation goes nowhere and killer cops are spared prosecution, much less jail time. This is often due to the close working relationship that exists between district attorneys and the police on whom they depend to gather evidence and witnesses to present their cases. The fact that many district attorneys have close personal or family ties to law enforcement or have seen their careers boosted by support from politically powerful police unions only heightens their reluctance to put a police officer on trial.
On July 8, Governor Andrew Cuomo signed an executive order making New York the first state to take away the power of district attorneys to protect police officers implicated in the killings of unarmed civilians. Under Cuomo’s executive order, New York State Attorney General Eric Schneiderman will oversee these kinds of cases. The order lasts for one year and could be extended again next year.
Surrounded by black clergy, lawmakers and family members of civilians who have been killed by law enforcement, Cuomo argued it was necessary to address “the crisis in confidence” in the criminal justice system caused by police killings of unarmed civilians. He also boasted that his approach could provide a model for nationwide action.
Gwen Carr, mother of Eric Garner, the Staten Island man whose death last year from an illegal police chokehold was recorded on a cell phone video that went viral but did not lead to an indictment, hailed the measure as “a step in the right direction.” The District Attorneys Association of the State of New York reacted angrily, calling Cuomo’s actions “gravely flawed.”
It’s unclear how well this new approach will work. Schneiderman may be hard pressed to stay on top of events in a state of 19.7 million people spread across 62 counties. The attorney general’s office will still have to rely on local police investigators to build his cases. Schneiderman, who is widely expected to run for governor someday, may also think twice about aggressively pursuing cases that could bring down the wrath of the police and their supporters on him.
Lessons from the Past
While Cuomo is content to make splashy announcements and reap the positive headlines that follow, he should have heeded the 1994 report of the Mollen Commission, which investigated police corruption and brutality in the NYPD. The commission called the special prosecutor’s office a “tough-sounding idea that will not solve the problem.”
Trial convictions of police officers are notoriously difficult to obtain. The rare instances when police are held accountable, it is through civil litigation and settlements that are costly to the municipality and infrequently result in changes to police practices.
Grieving family members of people slain by police officers — and Americans in general — deserve better than this inherently ineffective model. In responding to the groundswell of public outrage at police killings, Cuomo squandered an opportunity to enact innovative, fundamental reforms to the institutionalized epidemic of police violence. Rather than creating yet another prosecutorial entity, he should have heeded recommendations from the U.S. Commission on Civil Rights in its seminal 1981 report, later revised, “Guarding the Guardians.” In examining police practices that negatively impact communities of color, the commission called for reforms to increase police accountability and enact independent community oversight of police in order to reduce violent incidents. Such bodies would stand in stark contrast to toothless entities like New York City’s Civilian Complaint Review Board, whose rulings in cases of alleged police abuse can be overturned by the police commissioner.
Cuomo could have announced he was devoting significant funding to a statewide campaign to instill higher standards among police departments throughout the state. The campaign would focus on improving police recruitment and retention policies so police forces would better reflect the communities they work in. Creative initiatives would be designed to increase diversity, promote recruitment of candidates who have college degrees, eliminate bias in hiring, improve the promotion rates of officers of color and promote a reward system for practices that protect civil rights and reduce questionable crime prevention strategies like “broken windows” policing.
Training would be overhauled with increased basic training on diversity issues, especially during the early years of police officers’ careers. Training, which should involve community members with differing perspectives, would emphasize cultural sensitivity, community policing, appropriate use of force and how to avoid racial profiling. It would improve the overall effectiveness of officers (and safety of civilians), especially in demanding circumstances.
Law enforcement agencies would be mandated to continually assess internal policies and practices and improve them as needed, with the exception of deadly force, racial profiling and misconduct, which would be monitored by existing external review agencies. Police officials would construct a uniform policy on the use of deadly force. Intensive training with real-life scenarios would be provided on a continuing basis to help guide officers’ discretion. Police administrators and Internal Affairs officials would be encouraged to regularly re-examine disciplinary procedures to improve the effectiveness of internal affairs divisions.
In cases in which the special prosecutor does bring charges against officers, each instance should be held out as a learning opportunity and not just punishment. Court settlements of civil lawsuits against the police should call for meaningful policy changes.
To adequately address modern-day police corruption — brutality, abuse of authority and disdain for established police procedures that increasingly result in the death of civilians — police departments must maintain and embrace internal oversight and accountability controls and a new approach among command authority to minimize the possibility of excessive use of force. Improving internal controls within the NYPD is essential in changing a culture that tolerates officers’ use of excessive force. If that can reduce the number of fatalities by officers, and if prosecutions can be brought by impartial and unbiased attorneys, Cuomo has the chance — if he stands as a leader in calling for a re-envisioning of policing standards — to help reverse a longstanding trend of violent police acting with impunity.
It will go a long way in addressing the “crisis” that Cuomo described in his announcement; for white people, that crisis is a loss of confidence in the fairness of the justice system. For African-Americans, whose daily lives are directly impacted by the specter of police abuse of authority, that crisis is the state as purveyor of racist violence.
Heidi Boghosian is an attorney and the former executive director of the National Lawyers Guild.
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