How Congress Can Fix the Justice System

After Michael Brown and Eric Garner, it’s up to House and Senate Republicans to reform our criminal justice system. And surprisingly enough, they just might do it.

Jim Young/Reuters

Alexis de Toqueville noticed something interesting about the French Revolution: the spirit of rebellion was most intense in regions where the standard of living was rising, not falling. The idea of a revolution of rising expectations was revived in the decolonization era after World War II and during the civil rights movement in the United States. When certain conditions improved for African-Americans, they mobilized around the knowledge that others had not.

We may be entering a similar period now. No one even half-awake believed the election of the first black president would transform race relations in the United States, but Obama’s 2008 victory did spark a series of expectations, many of which Obama himself knew were unrealistic. Most blacks didn’t blame Obama for falling short; they know racial abuses in the criminal justice system are deeply embedded in American history. But his presence in office heightened frustration over those abuses, and the explosion of social media after Ferguson, which was initially ignored by the mainstream media, is shining a harsher light on them.

Being reminded that economic and social conditions are not improving at the pace one expected can be a powerful motivator. We’ll see how powerful next weekend in Washington, where the Rev. Al Sharpton and others have planned a huge march. Sharpton, a big Obama supporter, says that so far he thinks the president has responded well; better than President Bill Clinton did in 1999 when Amadou Diallo, an unarmed Haitian immigrant, died in a hail of 41 bullets fired by New York police officers. The onus, Sharpton argues, is now on Congress to act.

There’s surprisingly little criticism of the march, perhaps because smarter Republicans can feel the tectonic plates of American politics shifting beneath their feet. Even the increasing identification of this issue as “criminal justice,” not “crime,” is an indication of how the terrain is changing. Several conservative commentators on Fox News took care to distinguish between the Ferguson case, where they believed the word of police officer Darren Wilson, and the videotaped chokehold that caused the death of Eric Garner on Staten Island, which at least some believed should have resulted in an indictment.

There was plenty of outrage over the looting in Ferguson in late November, but also a greater recognition than in the past—even on Fox—that it was the work of a small number of knuckleheads and not to be conflated with the mass of protesters gathering around the country. When the grand jury refused to indict in the Garner case, not many conservatives rushed to the microphones to defend the killing of a man pleading “I can’t breathe!”

The broader issue is also playing out without the usual toxicity. Rand Paul has won freshness points in the early 2016 handicapping by talking repeatedly about de-incarceration, as several Republican governors have for the last few years. When Hillary Clinton pointed out this week that the United States has five percent of the world’s population but 25 percent of the world prison population, no one on the right took umbrage.

So will anything really change? The legislative question is whether the Republicans about to take control of Congress can swallow hard and support the president’s newly-announced law enforcement package, which contains $75 million for a program to give about 50,000 body cameras to state, county and local police departments. This would outfit less than one tenth of police officers nationwide but gets the idea circulating. Once prosecutors realize that body cams help them win cases (not to mention convincing guilty suspects to plead out and avoid an expensive trial), more of them might come around to a position now embraced by everyone from Sharpton to Sean Hannity.

It’s up to the press to move body cams from a narrow third-tier issue asked only of police chiefs and members of the Judiciary Committee into something asked of all politicians. That’s harder when there’s no real disagreement. Common sense, uncontroversial ideas tend to languish when attention has moved elsewhere.

Obama has appointed a task force to report back in 90 days on how to improve police tactics, demilitarize police departments and institute other reforms. It has the potential to be as important as Herbert Hoover's 1931 Wickersham Commission, which led to legislation reforming Prohibition enforcement and barring "the third degree" -- the torturing of suspects by police wielding rubber hoses that was common in the back of station houses throughout the country.

The task force will also likely highlight the need to videotape all police interrogations, an idea pioneered by then-Illinois state senator Obama in the 1990s. But to be historic, the commission should address the underlying structural problem of almost all potential prosecutions of police officers.

As critics have argued for years, the investigation and prosecution of police officers contains an inherent conflict-of-interest. The same DAs and assistant DAs who depend on cops every day to gather evidence and testify should not be asked to turn around and prosecute their friends and colleagues. Even the most scrupulous prosecutor on the planet cannot do so with the required impartiality and detachment.

After the Justice Department last week announced a civil rights investigation into Garner’s death, the 20th such federal probe of a police department launched by Attorney General Eric Holder in the last five years, Senator John Cornyn of Texas, soon to be the second-ranking member of the Senate, asked: “Why does the federal government feel like it is its responsibility and role to be the leader in an investigation in a local instance?”

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It’s a question that the Republicans who will now dominate state and local politics in broad swaths of the country answer by saying that Washington has no such role. Should a Republican be elected president in 2016, many of those 20 Justice Department investigations would be wrapped up quickly.

The challenge is to square that federalist impulse with the need to address the blatant conflict-of-interest that is undermining confidence in fair, colorblind law enforcement.

It seems to me the answer is a short federal statute requiring the states, under the equal protection clause of the Fourteenth Amendment, to remove the investigation and prosecution of police officers from local county prosecutors by any means they see fit. Keep it super-simple from Washington. Then governors, state legislators and prominent members of the bar—many of whom have appointed independent prosecutors before--can figures out how to institutionalize such appointments (usually of prosecutors from other counties, with limits on their investigations), or change state law to allow for open preliminary judicial hearings instead of closed grand juries.

I’m not naïve enough to believe this will pass any time soon. It’s hard enough just to get legislation requiring local police to provide accurate statistics on the death of suspects in custody. But that doesn’t mean we should stop trying to use the new sense of urgency on this issue to nudge state action.

Ideologically, Republicans should embrace the idea, which would apply to the 500 to 1000 cases each year (I told you the numbers were vague) where police officers kill someone in the line of duty. It lets conservatives seem responsive without giving more power to the Justice Department. Police and prosecutors, eager to protect their cozy relationship, would almost certainly use their lobbies to oppose it, though it’s hard to see what their argument would be. But mayors generally favor ways to reduce political heat with independent probes. And it would let governors show leadership in explosive, highly-publicized cases. If Gov. Jay Nixon had removed the Michael Brown case from St. Louis County DA Robert McCulloch, the fallout would have been significantly reduced.

Even without a federal statute, the Justice Department should incentivize states to enact their own laws by saying bluntly that the likelihood of a federal civil rights investigation will be lessened if states mandate the appointment of independent prosecutors in cases involving police departments.

No law or even revolution in police tactics can fully curb the rising expectations that come with a wired world. That’s good news. We’ve mostly moved past the era where blacks were routinely taken into the back of police stations and roughed up, and eventually—with better training and accountability—we’ll see fewer horrifying video of unarmed people killed by police. But the problem will never end entirely. So we need to focus our energy, anger and instinct for justice on the great cause of prosecutorial reform.