Urban America Forward | “Police Practice, Justice, and Over-incarceration”
Today in our criminal justice system, the question by people color that is often raised, “Is it justice, or just us?” – Nkechi Taifa, Open Society Foundations
“This environment of government-sanctioned racism and discrimination has sent message that it’s OK to target your neighbor based on how they look or how they pray. It has been a factor in the disturbing level of anti-Muslim hate and bigotry in our nation today..” – Farhana Khera, Muslim Advocates
“I’m not fully sold or wholly invested in the idea of a more diverse police force or on the idea of training police to be service oriented. But I do know that solutions exist in the community.” – Janae Bonsu, BYP100
“In 1972, we were moving at the same rate as all our Western European peers, and then we went wildly out of control. Our prison population grew 400% by 2010.” – Nick Turner, Vera Institute of Justice
“If no one was locked up for any kind of drug crime. . . we would still be the world’s largest jailor and the race disparities would be worse, not better.” – Paul Butler, Georgetown University Law Center
“Focus on jails. 75% of those in jail are there for nonviolent offenses, public order offenses, drug-offenses, or traffic offenses.” – Nick Turner, Vera Institute of Justice
Multiple policy levers are required to address the complex issues underlying police brutality and over-incarceration in America. Recent incidents of police abuse have ignited local and national firestorms of outrage and a national debate about the accountability of police, the continued prevalence of racism in the justice system, the economic and political isolation of low-income racial minority communities, and whether it is possible—and, if so, how—to repair community-police relations in urban America. The selective timeline of recent public crises demonstrates the need for an organized policy response to these issues.
- The 1996 Supreme Court decision Whren v. United States held that pretextual stops— using a minor traffic infraction, real or alleged, as an excuse to stop and search a vehicle and its passengers—is constitutional. Whren in many ways enabled “broken windows” policing in which disorder is aggressively policed and even if searches and seizure are motivated by unconscious racism.
- On August 9, 2014, Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed, African-American,18-year-old in Ferguson, Missouri. The shooting prompted weeks of protests in Ferguson as well as multiple cities across the country. On November 24, 2014, a grand jury decided not to indict Wilson. However, in March 2015, the Justice Department called on Ferguson to overhaul its criminal justice system, declaring that the city had engaged in constitutional violations.
- In December 2014, a Staten Island grand jury failed to indict NYPD Officer Daniel Pantaleo for the fatal use of a chokehold on Eric Garner an unarmed 43-year-old African-American male who died July 17, 2014, while he was being arrested for selling untaxed cigarettes. The deadly encounter was captured on camera by nearby onlookers.
- In July 2015, Sandra Bland, a 28-year-old African-American woman, was found hanged in a jail cell three days after being arrested, accused of failing to use her turn signal. Brian Encinia, the Texas state trooper who arrested Sandra Bland, was indicted on charges of perjury.
- More than 60 percent of the people in prison today are people of color. African-American men are nearly six times, and Latino men are 2.3 times, as likely to be incarcerated as white men. One in every ten African-American men in their thirties is in prison or jail. The number of women in prison has been increasing at a rate 50 percent higher than men since 1980.
- Jails—locally run facilities used primarily to detain persons arrested but not yet convicted of a crime—now hold more than 730,000 people on any given day, more than triple their population in 1983.
Below are the overarching themes and the corresponding policy recommendations that emerged during the Roundtable Series.
Enforcement quotas are harmful and should be outlawed. There is ample evidence that police departments are guided by an unwritten rule that they must meet arrest and ticketing quotas (sometimes called productivity standards). Arrest and ticket quotas are illegal in several states, including New York, Illinois, California, and Florida. Law enforcement agencies that turn a blind eye to enforcement quotas should be legally challenged. Currently, officers are suing the New York Police Department for requiring minority officers “to make at least one arrest and issue 20 summonses a month.” The President’s task force concluded that numbers-based policing sends the wrong message to the public.
Most policing experts are white males. We must cultivate experts of color in the area of policing and demand that police reform involves experts of color and those communities affected by police abuse.
Independent Civilian Review. In the instances of police-involved killings, departments must also be held accountable through functional, independent civilian review boards, and the appointment of a special prosecutor.
People profiting from the prison industry should not also profit from a prisoner re-entry industry. Funding should shift to community health and community-based re-entry programs.
To obtain a meaningful reduction in the federal prison population, we must go beyond the low hanging fruit of first-time nonviolent criminal offenses.
Since 9/11, the FBI has turned its attention from the War on Drugs to the War on Terror. We need more research to document law enforcement encounters with the Muslim community.
Use federal litigation to address “broken windows” or zero tolerance policing that has a racially discriminatory impact. In 2010, the NAACP Legal Defense and Educational Fund challenged the aggressive use of broken windows policing in Davis, et al. v. City of New York, et al. The case aimed to establish that officers of the New York City Police Department stopped public housing residents without suspicion and conducted arrests without probable cause; that the NYPD policies discriminated against minorities; and that the City of New York and the Housing Authority violated the housing rights of public housing residents. The class action led to training of NYPD officers to address their implicit bias that connects race and criminality.
Federal, state, and local legislation should require police officers to identify themselves and record encounters with the public. In part, transparency and accountability are at the heart of policy proposals for body cameras, which have garnered significant support in the wake of recent accounts of police abuse.
Law enforcement agencies that receive federal funding must comply with Title VI of the Civil Rights Act of 1964. Civil rights advocates, organizations, and individuals can file civil rights complaints with the Department of Justice Office of Civil Rights if a local law enforcement agency is involved in race discrimination. A Title VI claim can be based on disparate impact as well as discriminatory intent.
Models and Tactics
The Civil Rights and Police Accountability Project at the University of Chicago secured a landmark Illinois appellate ruling making police misconduct records available to the public. The clinic is developing a clearinghouse that will enable advocates, researchers, journalists, and private citizens to access complaints about police misconduct. Developed in partnership with the Invisible Institute, the Citizens Police Data Project would be the country’s largest public database of police misconduct allegations. Similarly, the Indianapolis Police Department has developed a public portal that tracks officer complaints, use of force, and shooting incidents. The Guardian and the Washington Post have created national databases tracking the deadly use of force by law enforcement.
The Community Safety Act (CSA). Communities United for Police Reform in New York worked with allies across the city to pass the CSA, a landmark legislative package that requires officers to provide the specific reason for their law enforcement activity, such as a stop-and-frisk, and requires officers to provide a document with his or her name and information on how to file a complaint at the end of each police encounter. Similar laws exist in Arkansas, Minnesota, and Colorado.
Electing prosecutors. Prosecutors are powerful actors in the criminal justice process. They decide whether someone will be formally charged or diverted from the judicial system and incarceration. The civil rights community can engage in election strategies to support prosecutors for office.
 An 11-member task force was appointed by President Obama to address the tensions between law enforcement officials and the communities in the wake of the shooting of Michael Brown and incidents of police brutality in Ferguson, Staten Island, and Baltimore. The task force called for the collection of data on police-citizen interactions, banning of racial profiling in policing tactics, and independent investigations into officer-involved injuries or deaths.
 S. Almasy and C. Friedman, “Trooper Who Arrested Sandra Bland Indicted on Perjury Charge,” CNN, January 6, 2016, http://www.cnn.com/2016/01/06/us/sandra-bland-trooper-brian-encinia-indicted/.
 The Sentencing Project, “Fact Sheet: Trends In U.S. Corrections” (Washington, DC: The Sentencing Project, 2015), http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf.
 Vera Institute of Justice, “The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration” (New York: Vera Institute for Social Justice, May 2015), p. 1, http://www.vera.org/sites/default/files/resources/downloads/price-of-jails-summary.pdf.