THE POLICING IN AMERICA SYMPOSIUM: Introductory Notes on Investigating the Legitimacy of Police Power and Accountability

August 7th, 2017

By Frank Kearl

In March of 2015 the U.S. Department of Justice released its report on the Ferguson Police Department.  In the aftermath of the shooting of Michael Brown, the DOJ spent six months interviewing the city’s police force, reviewing tens of thousands of pages of police records and emails, participating in ride-alongs, and working with statistical experts to analyze data on stops, searches, citations, and arrests.[1]  Their report concluded that the Ferguson Police Department aggressively enforced the city’s municipal code with “insufficient thought given to whether enforcement strategies promote[d] public safety or unnecessarily undermine[d] community trust and cooperation.”[2]

In addition to highlighting a series of specific instances where individual officers exuded racism while abusing their power, the department’s entire culture was found to foster consistent violations of citizens’ constitutional rights and the city’s criminal justice system showed “substantial evidence of racial bias among police and court staff”.[3]

Policing in AmericaNow, two years later, the DOJ has undergone a sea change of leadership.  Jefferson Sessions, America’s new Attorney General, has dismissed the Ferguson Report as “pretty anecdotal and not so scientifically based” despite his not actually having read it.[4]  His attitude exemplifies the “bad apples” understanding of the problems with the criminal justice system.  While Sessions would be right to assert that there is a serious need to gather more data about the interactions between police and citizens, as called for in Justin Nix’s contribution to this symposium American Policing in the Post-Ferguson Era, for Sessions to write off complaints about police misconduct as the result of a few individuals acting badly is to ignore the entire legacy of racism that has continuously haunted this country from its outset.[5]

The goal of this symposium is to engage in a deeper discussion about policing in America.  Beginning with an acceptance of the conclusions of the thorough and well-researched Ferguson Report that there are systemic problems in America’s police departments, we ask how we as citizens want to understand the role of the police as an agent of the state, beholden to the communities they serve.  In the wake of the “compelling smartphone scrutiny” of the use of force by police, we seek to reinvestigate the legitimacy of police power and demand police accountability.  For this symposium, Eric J. Miller’s On Behalf of the Community examines the relationship between police and communities and presents us with difficult questions about police responsibility, responsiveness, authority, and authorization.  In a time where the national crime rate is at an all-time low[6] we have an obligation to challenge police departments to justify their order-at-all-costs methodologies and to demand reforms when they cannot.

For too many Americans there is a distrust of police power and a feeling of powerlessness in the face of systematic abuse and violence.  Yxta Maya Murray’s article Rafa Esparza’s Red Summer highlights the “mounting and sometimes intolerable psychological catharsis” that follows such violence and re-contextualizes the issue as one that reaches beyond just the law.  While the criminal justice system is intrinsically tied to the law, to manifest systemic change will require the collective action of social movements and organized communities.  It is undeniable that there must be reforms to American policing, but our society must first acknowledge the generations of injustice before deciding together what roles the police will serve going forward.

[1] See Investigation of the Ferguson Police Department at 1, U.S. Dept. of Justice, Civil Rights Division (March 4, 2015) available at https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.

[2] Id. at 2.

[3] Id. at 2, 4.

[4] See Radley Balko, Jeff Sessions Dismisses DOJ Reports on Police Abuse Without Bothering to Read Them, Washington Post (Feb. 28, 2017) available at https://www.washingtonpost.com/news/the-watch/wp/2017/02/28/jeff-sessions-dismisses-doj-reports-on-police-abuse-without-bothering-to-read-them/?utm_term=.5c1608f9ca13.

[5] See, e.g. U.S. Const. art. 1, § 2, cl. 3 (the three-fifths clause); Dred Scott v. Sandford, 60 U.S. 393 (1856).

[6] See Matthew Friedman, et al., Crime in 2016: Updated Analysis, Brennan Center for Justice (Dec. 20, 2016) available at https://www.brennancenter.org/analysis/crime-2016-updated-analysis.