I predict this post regarding the “new trend in police accountability” may be controversial. Holding cops accountable riles a lot of people, for some reason. Too many just find questioning police to be “wrong.”
I wanted to write a response to the verdict in the Derek Chauvin murder trial. My thoughts are a mixed bag, and I planned to try to puzzle out them out by writing about it.
As it turns out, I wrote more about officers who say that this verdict foreshadows a new trend that they don’t like. They call it “a new trend of sending officers to prison.” I will call it what it is: a new trend in holding officers accountable.
Let us hope that it is, indeed, a new trend.
In any event, I’ve already developed some thoughts relating to Chauvin’s trial that are going to require more posts. Y’all like more posts, right?
Why Would Anyone Want to Be a Cop?
I’ve been seeing this question all over Twitter since the verdict came out. And I heard it from various sources even before then. It takes various forms, but essentially, the idea is this:
If we’re going to question the police, and we’re not even police officers ourselves, then we cannot see any reason why anyone would want to be an officer. You have no idea what police have to deal with on a daily basis. They’re just trying to do their jobs, and get safely home to their families at night. Stop arresting cops for doing their jobs, or people won’t want to be cops!— My summary of what I’m seeing on Twitter
And there is some truth to this. But only the tiniest bit, and it’s not the part that implies that non-police should not be questioning how police do their jobs. Police officers work for the public. The public has every right to question how police do their jobs.
Nor is it the part about it being wrong to arrest police. When people commit crimes, we arrest them. Being an on-duty cop when you commit manslaughter, or murder, does not exempt you from that.
The implication, of course, is that we’re arresting cops, trying them, and imprisoning them, for doing their jobs — not because they commit crimes while in uniform.
So why would anyone want to be a cop? I hope that it’s because they want to help people. And I hope that a new trend of holding cops accountable when they do not help people, when they actively hurt people, does not dissuade those who have the desire to become cops who want to improve the world.
To Protect & To Serve
Once upon a time, nearly every police officer believed that his job was to protect and to serve. If you sit down with most officers today, there’s a decent chance they’re going to give you some version of this as their own motivation. But I fear that too many officers do not really believe this.
Or perhaps their idea of protecting and serving is just a little warped.
I’m not saying it is; I’m saying perhaps it is. I don’t have deep conversations with enough police officers. So I can’t say that I really know what their ideas on protecting and serving are. But the actions I see — and as a criminal defense lawyer, I see them often — do make me think that my view of protecting and serving, and that of many cops, is not a match-up.
I do not believe that protecting and serving includes conducting traffic stops for broken tail lights, or air fresheners, or speeding, or pretty much any Vehicle Code violation, and then forcing the occupants to get out of their cars and sit, or — worse yet — lie down on the ground while you badger them into “consenting” to a search of their car. Or simply illegally search it without consent.
Improving the World
After the verdict, I had a conversation with a friend. As it happens, the friend is a prosecutor. I sent him a story from the Onion with the headline “Depressed Police Officer Reminds Self That Chauvin Verdict Not Representative Of System At Large.”
He responded with a snort, and I told him,
I’m wondering if it’s a little odd that I don’t feel good about the verdict. I actually feel a little sad. And it’s not because I wanted him to be acquitted, either. I’m not sure what’s going on [with me]. It’s just, I watched him as the verdicts were read. And I felt sad. He killed Floyd. And now his life is essentially over, too. No winners here, I think.— Formerly private communication from me to a friend who is a prosecutor
He responded that he was not celebrating, either. Relieved. Saddened. Not celebrating. And I gather from other comments that he supports the new trend in holding police accountable.
We talked about our respective professions — mine as a defense lawyer; his as a prosecutor — and why we do what we do. I’m not going to give a blow-by-blow. Suffice it to say that we both aim for the same thing: making the world a better place. I call it “improving the world,” and in my mind, it’s connected up with what is probably a twisted version of tikkun olam. And, as a defense lawyer, my duties require me to think carefully about what that means, and how I can do it.
Some cops think like I do, as well.
Cops As Warriors, Or Neighbors
Patrick Skinner is a cop. Patrick Skinner is a former CIA agent: a former Warrior. Patrick Skinner is a neighbor. And if I read him correctly — and I follow him on Twitter, so I read him frequently — “neighbor” is probably the label he holds most dear.
For decades, the United States has funded and created police departments that resemble occupying military forces, unable to protect and serve. We armed ourselves literally and spiritually for a war on crime, and to quote Abraham Lincoln’s Second Inaugural Address, “And the war came.” What we now see deployed in many cities and towns is anti-policing. It’s the death of true community police work and, too often, the death of our neighbors. The well-documented militarization of American police departments has inevitably produced officers who see themselves and their roles as “warriors” or “punishers” or “sheepdogs.” Much of what our society finds so distressing and unacceptable in police interactions with their neighbors — disrespect, anger, frustration and violence — is not a result of “flawed” training; it’s a result of training for war.— Patrick Skinner, “I’m a cop. I won’t fight a ‘war’ on crime the way I fought the war on terror.” (June 3, 2020)
Skinner, as a police officer, appears to support the new trend of holding cops accountable. More importantly, he supports a new trend of cops seeing themselves as neighbors, and not warriors.
According to Skinner, the idea that we can teach police “de-escalation techniques” is pointless, unless the mindset of being at war is traded for the mindset of being a neighbor.
It’s a mindset that, I mean, what you say is what you believe. And what you believe is what you do. And so I, I’m very intentional about it. I only use it — because I reject the term “civilian,” because I’m not in the military. We’re cops. We’re not warriors. And, so, I just say that these are actual neighbors.— Interview on MSNBC, “Police officer on warrior mindset: We’re fighting this as a war, yet we live here” (June 5, 2020)
He goes on to say,
If you have a warrior mindset, you can’t de-escalate.— Interview on MSNBC, “Police officer on warrior mindset: We’re fighting this as a war, yet we live here” (June 5, 2020)
The War on Crime
This warrior mindset is at the heart of what bothers me about the Chauvin verdict. (See? Writing to figure things out works!)
It turns out that it’s not just cops who are infected with it. And because of that, the new trend on holding cops accountable, by itself, will not change things much.
In 1965, President Lyndon Johnson declared a “War on Crime.” As part of that, a “Crime Commission” was created. The Commission issued its report, The Challenge of Crime in a Free Society in February 1967. A second commission Johnson created — the Kerner Commission — emphasized the role of racial discrimination in perpetuating poverty and inequality.
Unfortunately, the Crime Commission’s report and recommendations — thoroughly infected with racism — have done more to shape our world today.
Even as members of both commissions mentioned racial discrimination and inequality as factors contributing to crime and disorder, they took for granted the guiding principle of domestic urban policy in the 1960s: that black community pathology caused poverty and crime. These racist assumptions influenced the “battle plan” that Crime Commission members developed for the administration, which focused explicitly on ways to improve federal, state, and local governments’ surveillance of and capacity to patrol black urban communities.— Elizabeth Hinton, “From ‘War on Crime’ to War on the Black Community” (June 21, 2016)
The War on Drugs
Then in the 1970s, President Richard Nixon declared his now-infamous “War on Drugs.” This so-called “War on Drugs” was really a “War on Black People (and Maybe Hippies).” As former Nixon domestic policy chief John Ehrlichman allegedly told a reporter,
We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities,” Ehrlichman said. “We could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.— Tom LoBianco, “Report: Aide says Nixon’s war on drugs targeted blacks, hippies” (March 24, 2016)
It was this “War on Drugs” that has driven America’s mass incarceration system. It is a war that targeted primarily non-violent offenders, and birthed “a penal system unprecedented in world history.”
Thus, the warrior mindset infected not just law enforcement, but the very foundation — the Law — of our so-called “criminal justice system.”
The Mindset Itself Must Change
This mindset must change. We must somehow find a way, as Patrick Skinner suggests, of seeing one another as neighbors. Members of the same community. I don’t know how we do that. Skinner, I guess, just does it. But he’s not trying to change an entire police-state culture which has been inculcated into all of us, and our political leaders, and our very “justice” system, including the courts, for more than 60 years now.
Whether you deem the new trend in police accountability a good thing, or a bad thing, holding cops accountable will be a never-ending battle, unless and until the mindset changes.
The War on Crime, the War on Drugs, and the transformation of the culture of the United States into one driven by all sorts of wars — our “Culture War” itself — are so deeply ingrained that I am not even sure that we can change it.
As a short blurb about James Davison Hunter’s 1991 Culture Wars: The Struggle to Define America notes:
Not since the Civil War has there been such fundamental disagreement over basic assumptions about truth, freedom, and our national identity.— Institute for Advanced Studies in Culture: Publications, book blurb on Culture Wars: The Struggle to Define America (undated)
That culture war is permeated by racism, misplaced “tough-on-crime” attitudes, and a warrior stance toward our neighbors: it’s internecine warfare, and without changing that, we will not change policing.
Boots on the Ground: Saving Starfish
Though things may seem bleak at times, we can and must work for change.
One suggestion on how we do that is what I wrote back on December 31, 2009:
When Monday comes, bringing with it a New Year, a new tidal wave of misery and another one after that, you’ll find us — along with Tony Serra, Mark Braughton, Serita Rios, Mike McNeely, Bonnie Bitter, Amy Guerra, Linden Lindahl, Scott Greenfield, Brian Tannebaum, Jeff Gamso, Mark Bennett, “Gideon” and too many others to mention here — down at the beach, tossing starfish back into the sea.— Rick Horowitz, “Starfish: The Obligatory End-of-Year Post” (December 31, 2009)
In other words, criminal defense lawyers must take Patrick Skinner’s approach, seeing our clients not just as clients, accused people whom we swear zealously to defend, but as neighbors whom we are helping to return to their neighborhoods.
One person at a time.
It’s not a new trend in holding cops accountable: it’s something criminal defense lawyers have done always, and every day.
And for everyone else? It means recognizing that our neighbors are not enemies in a never-ending war. Lobbying our legislators for criminal law reformation. And for re-forming cop culture through a new trend of holding police officers accountable to us.
Voices Assembled: Changing the World
Supporting individuals, which we absolutely must do, of course, is a necessary, but slow process. It doesn’t often change much about what led to their destruction in the first place.
The second way that criminal defense lawyers can change things is to become involved in the California Attorneys for Criminal Justice. I have been a member since I was in law school. I have served on the Board of Governors now since 2017. In 2020, I became the Chair of the Technology Committee.
But my favorite work has been as part — a very small part, but a part nonetheless — of the Legislative Committee. The Legislative Committee works essentially on two tasks. On the one hand, we fight legislation that increases the role of law enforcement in our society, that targets citizens to feed the system of racial and social control Michelle Alexander talks about, creating new crimes, and enhancing and enlarging sentences. On the other hand, we work together with legislators, supporting and proposing legislation leading to criminal justice reform.
California Attorneys for Criminal Justice’s work on criminal justice reform, driven by our Legislative Committee, has been behind, or responsible for, the following reforms:
- Most recently we sponsored AB 3070, reforming challenges to biased use of peremptories
- Ten years ago we sponsored the bill that redefined “transportation” in the drug sales statutes (H&S 11352, 11360, 11379 etc) to limit it to transportation “for the purpose of sale” — so no more felony charges for drugs in the car, or a pocket when walking down the street
- Currently we are sponsors for a bill to amend PC §1170(b) to satisfy Cunningham/Apprendi requirements. If the DA wants to seek the upper term in a triad they will have to plead and prove aggravating factors (in a bifurcated trial).
- We carried the bill to reduce the maximum sentence for misdemeanors from “one year” to 364 days. This was/is a big deal for undocumented Californians who no longer face deportation because they were convicted of a crime with a “one year” maximum sentence
- We carried the bill that eliminated people facing drug transportation charges by simply picking up a prescription for grandma and taking it to her: our bill inserted a specific intent element into the law
- And so much more that you can see on our website
Legislators look to us for our opinion on criminal justice bills, and their Legislative Committee staff members often seek us out for our insight and expertise on pending bills.
Bottom line? If you want to change the world, joining and supporting CACJ — and particularly getting involved with CACJ’s Legislative Committee — gives you that chance.