Unequal Justice

A last word on criminal justice disparities.

I still remember how astonished I was when, some twenty years ago, at a meeting of a small group of executives and government officials of which I was then a part, someone asked “how many of you have ever been stopped for speeding?” Every hand went up. The follow-up question was: “How many of you then had your vehicle searched?” Every black hand went up; no white one did. These were well-educated, well-dressed, well-spoken upper-middle class citizens.

Discriminatory laws are easier to change than the historic social structures and ingrained attitudes that have privileged white citizens and disadvantaged black ones for over two hundred years.

Social change tends to be slow and difficult, and racial disadvantage isn’t just economic. Even when the laws of the land are facially neutral, they are not always neutrally applied. If you are black, and especially if you are poor and black, the justice system you encounter is markedly different—and considerably less just—than the system that governs your Caucasian fellow-citizens.

In 1999, David Cole wrote what has come to be regarded as a seminal work on the issue of equality in the American justice system, No Equal Justice: Race and Class in the Criminal Justice System. The book documented pervasive race- and class-based double standards in criminal justice.

Cole’s unsparing look at the American justice system examined everything from police behavior and jury selection to sentencing; he argued that our system not only fails to live up to the promise of equality, but actually requires double standards to operate. Cole argued that it is the disparities in the system that allow the privileged “to enjoy constitutional protections from police power without paying the costs associated with extending those protections across the board to minorities and the poor.”

In its review of the book, the New York Times said “No Equal Justice makes a strong case that we have tolerated a law enforcement strategy that depends on the exploitation of race and class divisions.”

Although this unequal application of the law falls most heavily on poorer African-Americans, more affluent members of the community are hardly exempt. (There was something of a media firestorm when prominent Harvard scholar Henry Louis Gates was arrested for “breaking in” to his own home after a trip to China; police initially refused to believe he lived there.)

White America has finally begun to confront the reality of our unequal application of the laws. Thanks to technology and the proliferation of smartphone cameras and other digital recording devices, social media is filled with visual evidence of police conduct that challenges our most cherished beliefs about the maintenance of law and order. Recent books, like Michelle Alexander’s The New Jim Crow, an eye-opening examination of the drug war, have added to the evidence of dysfunction.

Even Congress—in a rare bipartisan effort—has acknowledged the inequities and is attempting to reform the system.

If we are to create a truly equal society—defined as a society that gives its citizens a level playing field and genuinely equal protection of the laws—we must look beyond economic security, important as that is. We also need to ensure that our government institutions are not treating similarly-situated citizens differently based upon the color of their skin rather than upon their behavior.

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What This Campaign Has Unleashed…

Over the past few months, I have seen increasing numbers of news reports like this one about a man who stabbed an interracial couple after seeing them kiss in a bar.

“He tells them, ‘Yeah, I stabbed them. I’m a white supremacist,’” Lower said. “He begins talking about Donald Trump rallies and attacking people at the Black Lives Matter protest.”

And this one:

Wichita State University student body president Khondoker Usama, a 23-year-old Muslim student from Bangladesh, and a Hispanic friend stopped at a local Kwik Shop late on a Friday in March. In an interview with the Washington Post, Usama says he noticed a white motorcyclist verbally harassing a black man, “calling him a lazy ass, saying, ‘You guys don’t work.’ He was using racial slurs.”

He says when the man took note of Usama and his friend, he began shouting, “Hey, you brown trash, you better go home.” Usama’s friend insisted, “It’s my country. Who the hell are you to tell me, ‘Go home?’”

“He seemed to be looking for a fight,” Usama told the Post. “The man started punching my friend. My friend dodged the first punch. I got in the middle of them—I told my friend to get back in the car. [The man] pushed me and he hit me over.” He began “kicking [my friend] in the stomach, indiscriminately punching him.”

Usama called the cops and the motorcyclist took off, but not before endorsing Trump.

“He was chanting, ‘Trump! Trump! Trump!’” Usama told the Post. “‘Make America great again! You guys are the losers! You guys, we’ll throw you over the wall!’”

And stories like this one.

Tracey Iglehart, a teacher at Rosa Parks elementary school in Berkeley, California, did not expect Donald Trump to show up on the playground.

This was, after all, a school named after a civil rights hero in a progressive California enclave, with a melting pot of white, African American, Latino and Muslim students.

That has not stopped some children from channeling and adopting the Republican presumptive nominee’s xenophobic rhetoric in playground spats and classroom exchanges.

“They said things like ‘you’ll get deported’, ‘you weren’t born here’ and ‘you were born in a Taco Bell’,” said Iglehart, 49. “They may not know exactly what it means, but they know it’s powerful language.”

As Nicholas Kristof recently wrote in the New York Times, 

This community of Forest Grove, near the farm where I grew up in western Oregon, has historically been a charming, friendly and welcoming community. But in the middle of a physics class at the high school one day this spring, a group of white students suddenly began jeering at their Latino classmates and chanting: “Build a wall! Build a wall!”

The same white students had earlier chanted “Trump! Trump! Trump!” Soon afterward, a student hung a homemade banner in the school reading, “Build a Wall,” prompting Latinos at area schools to stage a walkout.

Hillary Clinton recently accused Trump’s campaign of taking racism mainstream. Given the daily drumbeat of articles like those referenced above, Trump’s continued rhetoric, and his clear reluctance to distance himself from the white nationalists who enthusiastically support him, it’s hard to argue with that accusation.

Most political observers expect Trump to lose the election, and many expect the margin to be substantial. That’s well and good–but this is a genie that will be very hard to put back in the bottle.

I believe that most Americans–including most Republicans–reject the racism, misogyny  and xenophobia that have formed the basis of Trump’s campaign, but the sudden prominance of a politically significant white nationalist movement in the U.S. will challenge us for the foreseeable future.

Americans who have shuddered when considering Le Pen’s National Front in France and similar hard right movements elsewhere in Europe can no longer comfort ourselves with the fiction that we are less susceptible to that particular kind of ugliness.

For that disquieting epiphany, we have Trump to thank.

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Good Cop, Bad Cop

Yesterday’s post about the Department of Justice’s investigation of the Baltimore police department contained several suggestions about implementing change. A recent series of articles in the Washington Post pointed to a reform I omitted.

The Justice Department’s investigation of Baltimore police this month rebuked the agency for an entrenched culture of discriminatory policing. Deep within their findings, Justice investigators singled out a core failure: Baltimore’s system for identifying troubled officers was broken and existed in name only.

In Baltimore, Justice found that critical disciplinary records were excluded from its early intervention system, that police supervisors often intervened only after an officer’s behavior became egregious and that when they did, the steps they took were inadequate.

According to the Post, many police departments have inadequate “early warning” systems, and many have none at all. As a result, “bad apples” are protected, rather than identified, until they do something so egregious that it cannot be covered up.

An early-warning system, of course, is only as good as the data it includes. Some systems, according to the Post, exclude the sort of information one would expect–complaints filed, incidents of excessive force–instead recording things like grooming violations (growing a beard in violation of the rules) or absences. And as one officer noted, recording even relevant data doesn’t do any good if no one is reviewing it and acting on it.

The real problem is a very human one: the deeply-embedded tribalism that causes us to see the world as “us versus them.” The culture of a police department is very similar to that of a military group. Such “bonding” can be an important asset when danger approaches, but it can lead to a counterproductive protectiveness when one of “ours” is accused of improper behavior. When the accusation comes from someone who doesn’t look like “us”–someone who is culturally or socio-economically or racially different–that tribal instinct can overcome good judgment.

As strong as that impulse is, it behooves us to recognize that there are a lot of good guys in blue who play by the rules and require others to do the same.

Back in my City Hall days, I remember a conversation with the then-Chief of Police, about a lawsuit that had just been filed against a member of his force. Far from being defensive, he immediately agreed to investigate the allegations, saying “When we give someone a lethal weapon and the authority to use it, we have an obligation to make sure he is well-trained, emotionally healthy, and wearing a badge for the right reasons.”

Says it all.

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Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors.  Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

  • Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.
  • Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.
  • Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.
  • Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.

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Socializing Risk, Privatizing Profits: Big Pharma Edition

My friend Fran Quigley has an important article in Truthout about the skyrocketing prices of lifesaving drugs. The current outrage over a steep hike in Epipen prices makes it particularly timely.

As Fran notes, We the Taxpayers provide research dollars to support drug development (socializing the risk that any particular line of research will hit a dead-end). Big Pharma spends more on marketing than on R and D, charges what the market will bear and then some for the drugs it does develop–and pockets the profits.

It is hard to overstate the level of dysfunction in the US medicines system. The headline-producing greed of “pharma bro” Martin Shkreli was just the most dramatic example of a pharmaceutical industry whose patent monopolies grant it immunity from market forces while its political clout shields it from government regulation. Taking full advantage of taxpayer-funded research, drug corporations make record profits, even by Fortune 500 standards, and pay their CEOs as much as $180 million a year. Those corporations spend far more on incessant marketing to consumers and physicians than they do on research — part of the reason they have largely failed to develop new medicines that address the most deadly illnesses and diseases.

The United States is alone among western democracies in not negotiating drug prices. Medicare and Medicaid represent huge portions of pharmaceutical company customers, but Congress has consistently defeated measures that would allow government to use its leverage to bargain on prices. As a result, as Fran points out, “One in every five US cancer patients can’t afford to fill their prescriptions, and many seniors on Medicare are forced to cut their pills in half to stretch their supply.”

Congressional reluctance to push back against inflated prices and unwarranted price hikes can be attributed to politicians’ disinclination to kill the goose that lays the golden egg: each year, Big Pharma ranks among the biggest spenders on both lobbying and campaign contributions.

A ballot initiative in California–the Drug Price Relief Act– is taking aim at this status quo.

The initiative, recently certified by the California Secretary of State as Proposition 61, calls for state agencies to be blocked from paying more for a prescription drug than the price paid by the US Department of Veterans Affairs. Unlike the Medicare program, the VA is free to negotiate the price it pays for drugs and as a result, pays as much as 42 percent less than Medicare and usually significantly lower than state Medicaid programs. The primary force behind the ballot measure, the AIDS Healthcare Foundation, says the law could save Californians hundreds of millions of dollars a year in lower government costs and lower individual co-payments. The California Legislative Analyst Office says it cannot provide an accurate estimate of the savings, concluding that it is impossible to predict how pharmaceutical companies would react to this first-ever restriction on state drug spending…A July 2016 poll conducted by the initiative campaign, Californians for Lower Drug Prices, showed over two-thirds of voters supporting the ballot measure.

Predictably, the measure is being opposed by the pharmaceutical industry, which is pouring big bucks into a campaign against it. It will be very interesting to see what happens–both in other states and nationally–if the ballot measure succeeds.

There’s an old saying that pigs get fed, but hogs get slaughtered. California voters will decide which category best fits Big Pharma.

Stay tuned….

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