When police get it wrong (repeatedly): The rule of law and police reform

We have a policing problem in America, and we have a particular problem with how we police underserved populations. This is especially true within low-income, African-American communities. These are some of the primary issues brought to light in the recent Black Lives Matter protests of 2020. In the aftermath of the brutal May 25th killing of George Floyd in Minneapolis, which catalyzed new activism across not only in the United States but also around the world, there have been calls to defund, abolish, and reform police departments.

Without question, the trust between police and their communities, especially those based in low-income areas, has broken down, bringing about a call for comprehensive reform. However, the unfortunate truth is that many of the reform proposals as they currently read will not heal decades of immediate pain, trauma, and violence, not to mention centuries of social, economic, and educational failures in governmental policy. Since there are approximately 12,000 local police departments in this country, each tasked with enforcing a different slate of local and state laws, thousands of community-specific variations on the theme of reform will be necessary for impactful and lasting change.

The federal government cannot provide the reforms needed, because, at the end of the day, all policing is local policing. Rebuilding trust between law enforcement and citizens will arrive only when local leaders enter a formal process of transitioning – one that transforms community distrust to community solidarity in order to serve the common good and reestablish the rule of law. Rebuilding trust is especially needed in those places where police have abused their power.

For various reasons, 2020 magnified the issue of police brutality and its ongoing struggle with race and socioeconomic mobility. Transforming distrust to solidarity requires that all stakeholders participate in revitalizing their communities into places where we would all want to live. Justice is certainly a collective hope among many, if not the majority, of rational people, but the justice needed is not social, retributive, or restorative. Instead, it is transitional in nature.

We want to inspire our communities to move forward and revisit ways to exist as interdependent networks of social actors. The recognition of and appreciation for human dignity is crucial, as is a mutual social covenant that affirms the rule of law while practicing reciprocal neighborly care. Transitional justice in communities emerging from egregious and tragic social conflict, police misconduct, or systemic violations of human dignity must replace today’s insufficient vision of justice. Rather than seeking to deconstruct or dismantle the rule of law, transitional justice aims to restore it to support robust social growth, development, and prosperity.

In her book The Conceptual Foundations of Transitional Justice, University of Illinois Law Professor Colleen Murphy provides four conditions that call for the institution of transitional justice: 1) Pervasive structural inequality, which is measured by the consistent lack of access to real opportunities and conditions required for a person to flourish; 2) Normalized collective and political wrongdoing, which speaks to actions or omissions against particular human beings that result in violations of human dignity. Omissions include doing nothing about knowns harms; 3) Serious existential uncertainty, which includes varying levels of fear and doubt about whether individuals can exercise agency and remain safe where they live, i.e., a family’s social and geographical location; and 4) Narrow uncertainty about authority, particularly fundamental questions pertaining to the rule of law: To whom do the rules apply? Are there different, more fluid rules for some, dictated by race or class? Do certain groups enjoy the benefits of preferential treatment by law?

In cities where police are called to mediate issues in neighborhoods impacted by socioeconomic stagnation, the departments are often tainted by union corruption and over-policing. As a result, there is a culture of social anxiety among some residents at the mere presence of police, and uncertainty about whether or not law enforcement will act in compliance with the laws its mission is intended to preserve. Cities such as Minneapolis, which have track records of over-policing – combined with an absence of civil-society interventions to maintain public safety – would be ideal candidates for instituting transitional justice measures as a means to promote community healing and move forward towards effective, sustainable solutions when police get it wrong.

Transitional justice does not embrace revisionist history. On the contrary, it recognizes that each locality has its own societal archive that generates conditions for distrust between its community and the police assigned to protect it. As the International Center for Transitional Justice argues, transitional justice “signals the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.” Because addressing racial tensions is an important part of moving America forward, I have proposed the need for the country to use transitional justice to finally begin the process of healing the wounds of Jim Crow. We need to consider our racial history, as well as the deleterious American norms of policing low-income communities.

In this article, I would like to focus on healing tensions concerning police using the rule of law. Using the seven guiding principles as delineated in the 2007 report titled, “The Chicago Principles of Post-Conflict Justice,” cities can pursue the advancement of human dignity, justice, accountability, healing, reconciliation, peace, and solidarity in their communities with respect to law enforcement and policing by implementing the following principles:

Principle 1: Cities should prosecute alleged perpetrators of police violence and brutality. Police officers must be held accountable under the rule of law for violations against the human and constitutional rights of those with whom they interact. According to this principle, cities should “investigate serious allegations of gross violations of human rights and humanitarian law committed within their territory or associated with individuals under domestic jurisdiction. Where investigations confirm the validity of such allegations, [cities] shall develop appropriate prosecutorial strategies.”

While this principle is complex and will not be addressed overnight, repealing qualified immunity is a great first step in holding police accountable under the rule of law. Developed in the 1960s by the Supreme Court, qualified immunity shields state actors from liability for their misconduct, even when it escalates to illegal behaviors. In other words, the doctrine made it nearly impossible to sue police for violations of human dignity. This perverse incentive created an environment for many police officers to violate human rights with impunity. When the public is aware that police officers are privileged under the law, law enforcement’s trustworthiness reaches a high risk of being questioned. Prosecutors must not give police preferential treatment, even though the pressure to do so is heightened by their reliance on police evidence-gathering and forensics to clear cases, as well as pressure from police unions. The rule of law must apply to all persons equally and equitably.

Principle 2: Cities should encourage formal investigations of past violations of human rights by police using truth commissions or other bodies. According to this principle, “victims, their families, and the general society have the right to know the truth about past violations of human rights and humanitarian law.” Local residents who have experienced violations of human and/or constitutional rights at the hands of law enforcement must be given an opportunity to share their stories so that the truth may be fully and clearly revealed. Local residents need to know that their experiences hold purpose and importance, as illustrated by their being recorded. Moreover, formal truth commissions about specific incidents may be established by independent agencies that provide opportunities for truth-telling in ways that optimally serve local needs. What matters is that a uniform process for reporting past violations and investigations is initiated, and that all citizens have equal access to participate. This is particularly important for low-income communities whose voices often remain unheard or muzzled out of the fear of retribution.

Principle 3: Cities should acknowledge victims, ensure access to justice, and develop remedies to repair past damage. According to this principle, “victims have the right to equal and effective access to justice, factual information concerning violations and adequate, effective and prompt reparations … [Cities] shall publicize applicable remedies and make available appropriate legal, institutional, diplomatic, and consular means to promote victims’ access to justice.”

It is important that law enforcement agencies acknowledge human nature’s moral limitations, and that those same limitations also apply to police officers. That is, even police officers can cause unjust harm if they fail to do their jobs properly. When law enforcement gets it wrong and causes harm, local governments should be the first to act quickly to repair and/or replace physical or psychological damages, i.e., personal property or mental health status. For those who unjustly lost their lives at the hands of police brutality or negligence, public acknowledgement should be ensured to honor their family’s loss and serve as a reminder of the humility required for appropriate policing practices. Confessing mistakes, followed by outward commitments to repair and restore community losses, creates the type of transparency that fosters forgiveness, reconciliation, solidarity, and trust.

Principle 4: Cities should implement vetting policies, sanctions, and administrative measures to punish perpetrators, prevent future violations, and distinguish new measures for accountability. This principle states that “[v]etting prevents individuals responsible for past violations from participating in government or holding official positions. Vetting may operate for a set period of time or may involve lifetime bans. Vetting policies, sanctions, and related administrative measures are designed to punish perpetrators, prevent future violations, and distinguish the new government from prior repressive regimes by expressing clear support for accountability and fundamental human rights.”

Local law enforcement agencies should not only create policies that promote accountability and professionalism, but also clearly define the consequences for non-compliant behavior. It is important for local governments to mandate policies that disallow the reassignment of law enforcement officers involved in past human rights violations to positions that still impact communities where those violations occurred. Again, it is important that the rule of law holds the greater authority, and that it is consistently enforced by law enforcement leadership, even if and when unpopular, in order to protect and maintain equitable public safety and security.

Principle 5: Cities should support official programs and initiatives to remember past victims of injustice, educate communities about past problems, and allow local families to properly grieve past tragedies. This principle states that “[m]emorialization honors the dignity, suffering, and humanity of victims, both living and dead, and commemorates the struggles and suffering of individuals, communities, and society at large.” Cities “should engage in memorialization with the assistance of victims, victims’ organizations, and others in a manner that displays great sensitivity toward local culture, context, and values.”

It is critical for healing that local officials honor those in their communities who have unjustly suffered at the hands of poorly administered law enforcement practices. City governments must be transparent about violations of human rights, provide opportunities for mourning unjust losses of life, and see that both acts educate the community. While some may fear transparency undermines confidence in institutions, research supports the opposite conclusion: The more transparent communication is between police departments and their communities, the less adversarial and suspicious residents will be of the men and women in blue.

Principle 6: Cities should support and respect traditional and religious approaches regarding past violations, and activate civil-society institutions like churches and nonprofits, for facilitating peace and reconciliation. According to this principle, “[t]raditional, indigenous, and religious practices often link public deliberative processes involving respected community members with formal mechanisms of evaluating and addressing claims.” It is naïve to place the burden solely on the police departments to facilitate reconciliation, solidarity, and trust within their communities given the various sectors of the community they serve. All community stakeholders that interact with law enforcement should play a role in rebuilding trust: religious institutions, faith-based nonprofits, social entrepreneurs, schools, etc., can take the lead in helping communities redirect their fears and frustrations and promote healing. Local community leaders should identify credible, trustworthy civil-society institutions that are the most practiced at facilitating forgiveness, reconciliation, restoration, trust, and solidarity once the acknowledgement of wrong-doing has been conveyed. The importance of their role and value of their influence in healing communities and mediating tensions between police and community residents are nothing short of unrivaled.

Principle 7: Cities shall engage in police reform to support the rule of law, restore public trust in policing, promote constitutional rights, and support good governance. According to this principle, “[i]nstitutional reforms aimed at supporting responsible governance and preventing a recurrence of violations should be developed alongside broad public consultations that include the participation of victims, their families, affected communities, and civil society.” Law enforcement must work with local and state leaders to create ways to better police their communities – ways that foster solidarity, encourage trust, and seek to eliminate the calamitous cycle of police brutality.

While repealing qualified immunity is key, additional steps must be considered. One significant starting point is for local communities to reassess the role of law enforcement as first responders. In recent decades, the responsibilities of police officers have been redefined to include those of de facto social workers, marriage counselors, school disciplinarians, mental health counselors, and more. The truth is, while many 911 calls are made to avert criminal activity, many more would be best served by the training and expertise of those working in specialized sociological, psychological, and therapeutic areas, as opposed to the experience of a person carrying a gun. Cities should focus on developing diversion programs that best meet public safety needs by offering the appropriate accompanying skill sets for effective resolution. By doing so, increased civil-society intervention can be tapped, and escalations that potentially lead to citizen injury and/or death can be avoided. The more often such intervention is activated, the less frequently police and government agencies will ineffectively insert themselves into the brokenness of the human condition while lacking the educational, contextual, or experiential knowledge and training required for a successful resolution. As Marvin Olasky, the author of The Tragedy of American Compassion, points out, this approach was the norm prior to the 1960s. We must seek to revisit and restore these effective frameworks as soon as possible.

In the final analysis, due to America’s racial history and track record of disparate poor policing within low income communities, transitional justice is our only hope for ridding 2020 America of ongoing turmoil and social strife. We need transitional justice to heal the racial legacies of Jim Crow, and the demeritorious over-policing that often occurs in underserved communities when civil-society institutions have been sidelined. When applied to police reform, transitional justice empowers local communities to address their past sins, and charts a transformative course forward towards reconciliation, peace, and trust in ways that uphold both human dignity and the rule of law.

(Photo credit: Jason Hargrove. This photo has been modified. CC BY 2.0.)