LETTER FROM WASHINGTON
To Democrats Abroad
30 May 2015
Executive Director Emeritus
The monthly dilemma for your observer on the Potomac is to choose which great national issue to discuss for Americans abroad: ISIL gains, the Democratic split on fast track, the Republican split on NSA, the imminent SCOTUS ruling on Obamacare, the 2016 campaign, Cuba or Iran?
Today the conjunction of demand across the country for reform of our policing and for reform of our incarceration may be that issue. While no one denies that the overwhelming majority of police officers act reasonably, that they are at great risk and that their service is essential to a civilized society,there are individual and institutional abuses that cry for correction.
For the first time in almost three decades there is a rare convergence of liberal and conservative opinion that our present levels of incarceration and our police culture must be changed.
Hillary Clinton, Ted Cruz and Rand Paul want to ease mandatory minimum sentences. Chris Christie, Scott Walker, Rick Perry, Jim Webb and Marco Rubio each have other approaches to reducing mass incarceration. Right and left think tanks agree: the Koch brothers and the Center for American Progress are cooperating on reforming criminal justice.
At the same time, the documented police excesses in Ferguson, Baltimore, Cleveland, and other communities accompanied by violent protests about the use of lethal force have made police reform an active issue at the local, state and national level. New deaths every few days stoke the fire, super-charged by the exoneration of the officers responsible. The new factor is not the deaths and exonerations but their documentation by photos and videos made by passers-by, surveillance cameras and police body cameras. This is a genie that cannot be put back in the bottle.
Both police and incarceration excess bear most heavily on black and Hispanic men although black women are increasingly victims as well. Almost one in 12 black men between 25 and 54 is locked up compared to one in 60 non-black men. While the United States accounts for less than 5% of the world population, we have more than 20% of the world prison population.
Our incarceration rate was fairly stable from 1925 to 1975 at about 100 per 100,000 population. Then, it began a rapid rise to peak in 2007 at 506. The latest data puts it at 478 at the end of 2013. Other developed countries run around 100 per 100,000.
The origins of both police and incarceration excess are similar: more than two hundred and years of slavery followed by Jim Crow and lynchings, criminal justice administered primarily by the individual states with some 18,000 local police departments and, the two historic changes in public policy: deinstitutionalization of the mentally ill in 1955 and launch of the drug war in 1971.
Deinstitutionalization began with the availability of the first anti-psychotic medication (Thorazine) and got a boost with the enactment of Medicaid and Medicare in 1965. Liberals wanted to free the mentally ill from restrictive institutions. Conservatives wanted to cut costs both by closing tax payer funded psychiatric hospitals and by shifting care of the mentally ill to the Federal Government. About 92% of those who would have been in psychiatric hospitals in 1955 were out by 1994. That was about 3/4 of a million of the severely mentally ill. This not only dumped thousands on to the streets but also eliminated hospital beds for new generations of those needing psychiatric hospitalization.
A significant burden placed on community police has been to deal with the mentally ill and a significant increase in incarceration has been caused by their imprisonment. There are no reliable data on all deaths caused by police since they are not required to report them to a Federal agency. But, those reported put the number in 2013 to be about 500 (private studies estimate more than double that number) and of those more than half had mental problems. By mid-2005, the last report by the Department of Justice, 56% of prisoners in state prisons, 45% in Federal prisons and 64% in local jails had mental health problems.
The war on drugs, launched by President Nixon in 1971, began the steady rise in incarceration that topped out in 2007. The percentage of Federal prisoners for non-violent drug offenses peaked in 1997 at 63% and declined to 51% at the end of 2013 (the latest data). Our rates of incarceration were inflated by a combination of longer and mandatory sentences, an increase in types of drug offense, tougher probation and prison privatization.
Reform of both incarceration and police culture has grown slowly since the 1967 Kerner Report. This year it may finally have reached critical mass. The brutal beating of Rodney King in 1991 caught on video and provoking rioting in Los Angeles, led to the enactment of the Violent Crime Control and Enforcement Act of 1994 giving the Attorney General authority to go to the courts to enforce remedies for “unconstitutional” police conduct. The Obama Administration has made both policing and incarceration a high priority. Following the deaths in police hands of Brown in Ferguson and Garner in NY, Obama appointed a task force which proposed wide ranging policing reforms in March of this year. The Department of Justice had already opened over two dozen investigations of police departments – the latest in Baltimore after the death of Freddie Gray in mid-April. And, to reverse drug war sentencing policy, since 2013 Attorney General Holder has led the Federal Government effort to reduce sentencing for non-violent crime. It has already had some success and has under-pinned bi-partisan legislative sentencing reform proposals.
The most significant progress in reforming police culture was the May 26 Department of Justice agreement with Cleveland. It may be a model for other local jurisdictions across the nation to get their police under civilian control and to change long developed police culture. The city will hire a civilian to head the internal affairs section of the police department as well as an inspector general to investigate police misconduct, policies and trends. It prohibits use of force for people talking back, or running away. Even unholstering a weapon must be reported. Its compliance is enforceable by the Federal courts.
Meanwhile, local prosecutors are breaking new ground by charging police officers with crimes of unconstitutional conduct that have very often been ignored in the past. The indictment of 6 Baltimore police officers for Freddie Gray’s death is among the most powerful. It remains to be seen whether judges and juries will begin to convict.
There is strong push back by police unions which have long had decisive political power. In most jurisdictions they are protected by laws and union contracts giving their members de facto immunity from effective transparency and oversight. And, the magic defense of officers charged with excessive use of lethal force is “reasonable fear” sanctioned by the Supreme Court in 1985. The police unions and their political supporters, are fighting to keep that protection. But, the high profile police killings in Ferguson and since have begun to weaken their position. After the New York police union leader attacked Mayor de Blasio this spring and orchestrated mass police back-turning on him, public opinion in NY turned against them &ndsah; 77% disapproved of the attack and 69% of police turning their backs.
While the police and corrections guard unions are the main opponents of reform of both police practices and incarceration, the companies that run private prisons (8.5% of all inmates and growing) some rural communities that depend on prisons for jobs and conservative politicians (e.g. Sen Grassley, chairman of the Senate Judiciary Committee), share their resistance to change.
Your observer’s crystal ball turns cloudy when asked whether the need and support for policing and incarceration will produce Federal law to hasten the change. But, during moments of clearing, he can see that the conditions for serious reform have not been better in almost half a century.30