The Police and the Community: Who Are We and Who are They?

The Police and the Community:
Who Are We and Who are They?

By Joel Levin

By the time I got the call from Carlton‘s father, he had not been breathing for several years. Arrested and awaiting trial, Carlton had, according to the County Coroner, suffered injuries from an epileptic fit, one supposedly well documented in the medical records. The guards at the County Jail had done everything possible to save him, but to no avail. He had received the best medical and correctional practices.

All of that was false. Carlton, a black man under arrest for homicide, with a history of fractious behavior, upon returning to his cell, had been cuffed, shackled and, after being placed on his bunk administered a chokehold that snuffed out his life. Several years after the event, an employee with a guilty conscience called the FBI. They and the DOJ Civil Rights Division interviewed the guards, reviewed the medical records, looked at the jail‘s history and practices, and eventually indicted six individuals. I represented the family.

Nothing about this case was unusual for those of us who handle civil rights matters, let alone for any among the minority communities themselves. I doubt it would even present many surprises to the general public. That said, the background of this all too ordinary event is worth at least a brief review, particularly with an eye to what is easy to improve and what is depressingly intractable.

First, jails are miserable places. Inmates are often exactly the people who cause nightmare specters for the suburban, the elderly, the fearful, and the audiences for those demonized in the press, film, and the popular imagination. The inmates themselves are often part of a culture or family where violence is normalized. They suffer in many instances from undiagnosed cognitive disorders or a host of untreated physical and mental illnesses (frequently both) and too often have long familiarity with drugs and alcohol. They are often members of socially disadvantaged and mistreated minority groups. They are weighed down, even overwhelmed, by all of it. The Greeks, and later Jews and Christians and Moslems through Maimonides and Aquinas and Averroes, saw individuals like these as less evil or immoral than often being stripped of the capacity to overcome ‘akrasia’, the weakness of the will, giving way to temptation and their appetites in their actions, in the way that members of the advantaged and better resourced middle class can resist. Mixed in with these individuals, of course, are those violent, morally indifferent, and pernicious persons who can move any population, as with any group led by stronger or more resolute individuals, to trouble. (Of course, some of the population are neither, but they are, to some extent, neutral placeholders.) The guards, every day then, encounter this population and skeptically view it as alien and unworthy at best, inhuman at worst.

The solution is relatively simple and long-known. It has little to do with brotherly love or charity, but simply involves scrupulous hiring and good training practices. Otherwise, too many guards or police either start out or become unsympathetic. The situation is analogous to two enemy forces, one armed and one unarmed, a military force against civilians so to speak. In the case of my client, as in almost all cases of specific individuals, there are troubling and often paradoxical facts that confute easy analysis. Here, the person who administered the chokehold that actually killed Carlton, the most senior guard, himself was black. Moreover, although statistics are hard to come by, this is not an entirely unknown event. We might think two things about this:

(a) The thin blue line and officer loyalty trump racial loyalty;
(b) Blacks and other minorities are almost always the target, regardless of who is in authority.

Both of these, I want to suggest, are false. Take (b). The number of police shootings leading to death, per Statistical Research, has hovered around 1000 a year since 2017 with the number of blacks being killed being about 25%. This is twice the population norm, but hardly a monopolistic tragedy of blacks. (The racial disparity in arrests, drug prosecutions, sentencing and police assaults is likely more dramatic and disturbing, but compilation has proven more problematic). Moreover, if there is some control for class, with those demographically poorest, least employed and least educated, the disparity is abated further. My client was black, poor, unemployed and poorly educated. Did class or race kill him? As it was a black guard (surrounded by encouraging white colleagues) who administered the chokehold, one might wonder. Of course, without question, race alone gets far too many killed by the police, but for many, the issue of race and risk that attaches to race has entered earlier: growing up poor, surrounded by criminal or at least deviant activity, with substance abuse, unemployment, and inadequate economic success skills everywhere, they are, to some extent set up to be targets. That said, the rarity of black on black police killing belies the notion of automatic loyalty transfer to blue.

It is hard to get past the heart-wrenching anecdotal images on one hand (“I can’t breathe“) or the endless platitudes on the other (“more training, weed out the racists“). The solutions hardly require complex, legal, social or philosophical insights – the coin of the realm for those who, like me, teach jurisprudence – but only simple decency. However, perhaps a look back at the individual who created the idea of the modern police force, the legal philosopher Jeremy Bentham, and what he had in mind, might provide a bit of additional insight.

Jeremy Bentham was an English philosopher and social reformer, best known as the father of utilitarianism, an ethical system that judges our moral actions by whether they advance or diminish the goal of the greatest good for the greatest number. Every action needs to be judged by its consequences in the real world, in actual situations. Bentham was the first (or among the first) major thinker to advocate equality for women, protections for gays, respect for animals, curtailing of the death penalty, and reform of the legal rules of evidence in order to achieve a more just result at trial. But it is his role in the idea of the modern police department that we might examine here.

In 1829, the Metropolitan Police, the first modern police department, was initiated in London by the Conservative Prime Minister, Robert Peel. He was a great admirer of the liberal Bentham, and created the department using Bentham’s ideas, particularly what it should and should not be: the police should not be a junior military and it should be intimately connected with the community it serves. This was tied to Bentham’s overall principle, rooted in his utilitarianism, that we should work harder to eliminate the reasons for crimes in the first place. “It is better to prevent crimes than to punish them. That is the chief aim of every good system of legislation.“

The Metropolitan Police were structured to be more bureaucratic (meetings, consensus, discussions) than military (top-down authority), politically neutral and distant from any party or interest, not carrying guns, wearing non-military uniforms, and staying away (‘sergeant’ aside)  from military titles. Every officer had to carry a paper warrant so he could be identified and held accountable. Finally, the police operating slogan, essentially Benthamite but formulated by Peel, was “the police are the public and the public are the police.“

The connection of all of this to today, and its failure to connect, was all too clear in my representation of Carlton‘s family. The integration of police and public was largely gone, the militarization of the police – titles, equipment, training – was on display with pride rather than shame, and the idea of transparency seen by the warrant card was eviscerated through the secrecy, confidentiality, and outright refusal to tell the candid truth about what happened upon simple request. For Carlton, who was in the cell, what happened there and his overall condition were hidden, falsified as part of a hastily minted conspiracy. That conspiracy involved the County Coroner’s Office, with board-certified physicians sworn to follow the Hippocratic Oath, lying about the results of the autopsy they performed. Only a Department of Justice threat to find those doctors guilty of aiding and abetting after the fact, a felony, caused a miraculous change of opinion.

The Coroner’s report was part of the familiar rhythm of such cases, even those which saw some degree of remedial justice. The Coroner changed the report, some guards told at least part of the truth, six Sheriff’s Department employees were indicted and the family received compensation. That said, the familiar rhythm also meant that only two of the defendants were convicted, and those for minor crimes (neglecting a medically at-risk inmate), the compensation was commensurate with the phrase “black lives don’t matter much”, and the whole legal process took 14 years.

The solutions here – not hiring the neighborhood bully and properly training the non-bullies who are hired – are not particularly racial or racially sensitive in their make-up. But the African-American Carltons are disproportionately, depressingly and systemically the victims in these types of situations. They are often simply victims of racism. Of course, demonizing, demeaning and marginalizing “the other” is an ancient, if pernicious, tradition. We see the results of it ever more strongly resisted and protested today, what might seem to be a counter-intuitive phenomenon, as it has somewhat abated. Without sanctioned segregation, traditional lynching, an open KKK, overt racism, official restrictions in the use of public facilities, transportation and schools and, again at least officially, with protection in hiring, voting, and school admission and many more minority mayors, school superintendents, and police chiefs – all things very different only a generation or two ago – we nevertheless today see more outrage, greater public frustration, and increased protest. Even Carlton, who died 16 years ago, obscure and unpublicized, let alone protested, would have his name on the lips of marchers today.

We might look to the political philosopher, Alexis de Tocqueville, who tried to understand why the French Revolution ignited a people whose lot was improving rather than declining. As he wrote in 1856, “It is not always by going from bad to worse that a society falls into a revolution. It happens most often that a people, which has supported without complaint, as if they were not felt, the most oppressive laws, violently throws them off as soon as their weight is lightened.“ The revolution of rising expectations.

Things are better, but are less tolerable. Fewer Carltons die, but we now expect more. The solution, for Bentham and Peel, as it was later for Gandhi and King and Mandela, lies clearly before us. First the protesters, and then the individual officer bending a knee before them, show the way.