Equal Justice Under Law: Reforming our Criminal Justice System

By CONGRESSMAN STEVE COHEN

Earlier this year, the deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery reawakened our nation to the systemic racism, excessive force, and abuses of power too prevalent in American policing. I remember names like Elton Hayes, who was killed by police in 1971, and Edward Garner in 1973, both in Memphis while I was in law school. In fact, it was Garner’s case – argued by my colleague on the Shelby County Commission and fellow attorney, Walter Bailey, before the Supreme Court in 1984 – that established a law enforcement officer may not use deadly force to prevent escape unless there is probable cause to believe the suspect poses a threat of death to the officer and others. Every few years, the death of a person of color at hands of police provokes outrage and handwringing, yet progress has been slow and often fleeting. Our challenge is to truly live up to the words carved over the United States Supreme Court, “Equal Justice Under Law.”

Throughout my career, I have worked to make policing and the broader criminal justice system fairer and more effective. I believe that the criminal justice system works best when it has the trust of the community and that requires several interrelated principles: 1) the police are truly dedicated to – and just as importantly, perceived as being truly committed to – protecting and serving the community, 2) government policies respect minority communities, 3) efforts to prevent crime and reintegration of those returning to society should be integral to law enforcement and criminal justice strategy, and finally, 4) we use all the tools of government and not view every issue through a criminal lens.

In too many communities, there is a crisis of trust between law enforcement authorities and those they are sworn to serve. This is true in communities of color, especially African American communities. The community views the police as some external entity coming into their neighborhood to get people, and the police see themselves as the “thin blue line” that enforces order in places where any break can lead to complete chaos. Federal policies, perhaps well intentioned when created, have served to reinforce this adversarial relationship. Police departments have been equipped with the tools of war to do battle on America’s streets. In police academies, more time is spent learning how to use firearms and practicing shooting than learning de-escalation techniques. And, accountability for misconduct has been so weakened that bad practices can metastasize and spread unchecked. In short, the culture of policing must change. Too many officers see themselves as enforcers, not public servants. We need to reverse that and further professionalize, not militarize, police forces.

To tackle some of these issues, I have proposed new measures that would increase accountability as a way of shaping culture. When there is a horrible incident of police misconduct, we often hear that the officer involved was just a bad apple. That may be true, but bad apples aren’t just themselves bad, they are bad because they spoil the bunch. We need accountability to prevent those with ill intentions from joining a police force and to quickly identify and remove them. In that context, I introduced the National Statistics on Deadly Force Transparency Act and the Police CAMERA Act. Both bills provide a way to review and understand how officers are interacting with community members. The Police CAMERA Act is especially important, because it allows us to literally rewind the video and replay an incident. The camera is an objective observer that can report what happened in a disputed situation.

However, reporting is not enough. We need to prevent misconduct, and when it does happen, there must be real consequences. That is why I introduced the Police Training and Independent Review Act. This bill provides cultural competency training for police officers so they can better understand the situations they are placed in and in turn be more effective. It also creates a system for independent review when deadly force is used. These incidents are some of the most troubling, and it is important that the reviews of these incidents are credible. In most instances, police departments themselves conduct the investigations of the deadly force incidents and, if appropriate, refer them to the local prosecutors, who the police work with daily, for potential charges. Even in the cases where the investigation is fair and thorough, and prosecutors act independently, the perception of conflicts of interest casts doubt on the process and outcome. Independent investigations in such cases would help instill confidence in the process and more generally the criminal justice system. I am pleased that versions of all three of these proposals were incorporated in the George Floyd Justice in Policing Act, which passed the House with my support on June 25, 2020.

I also recently introduced a bill that would create Respondeant Superior liability for employers of law enforcement officers who violated the constitutional rights of citizens. This accountability mechanism is designed to force cities and the departments to take training and the enforcement of use of force policies seriously and prevent civil rights violations before they happen.

Second, communities of color are disproportionately policed and incarcerated. According to Pew Research, Black Americans make up about 12% of the United States population but represent 33% of those incarcerated in America’s prisons and jails. In contrast, 64% of the U.S. population is white, but only 30% of incarcerated people are white. There are many causes for these racial gaps, and we need to be more thoughtful about how our criminal laws feed this problem. The “War on Drugs” has given us many examples. Take the crack-powder cocaine disparity, where possession of crack cocaine and powder cocaine (which are pharmacologically identical) have dramatically different sentences. For decades, crack cocaine was sentenced at a level of about 90:1 over powder cocaine. Underlying this policy is that crack cocaine is less expensive and predominantly used by

people of color, while powder cocaine is more expensive with predominantly white users. Though these polices were facially neutral, there was tremendous desperate impact across races. Over the past decade, we have made some improvements to the crack-powder disparity, but it still exists. Policy makers must be more thoughtful about how their polices affect different communities.

We also struggle with over policing in communities of color. Marijuana provides a good example of this issue. While both Black Americans and White Americans use marijuana at roughly the same rate, Black Americans are four times as likely to be arrested for a marijuana violation. This unequal enforcement is a major reason why I have fought for marijuana legalization for the past four decades. Marijuana is not as harmful as heroin and LSD, other drugs also on Controlled Substances Act’s Schedule I. The severe sentences for misuse of Schedule I drugs, coupled with unequal enforcement, means that marijuana is disproportionately incarcerating Black Americans. Having respect for minority communities in our policy making requires us to take these disparate impacts into account and work to reduce them.

Third, I believe we should expand how we think about law enforcement. We need to invest in successful prevention programs to help reduce crime and ease the transition back into society for those who have served their sentence. Many who have fulfilled their debts to society still suffer the long-term collateral consequences of conviction and incarceration. It is harder to find a job and rent a home with a criminal conviction on one’s record. To confront this problem, I have introduced the Fresh Start Act. This bill would allow for records to be expunged after seven years. Similarly, I authored the Making Essentials Available and Lawful (MEAL) Act which would allow ex-offenders, who are about to be released, to apply for SNAP and TANF benefits to help with their transition. Those who successfully reenter society are much less likely to reoffend, and that is good for everyone.

Last, our politics has warped our responses to many issues. We need to reinvest in social and community services that can better address the issues. We need social workers who have training in how to work with people in difficult circumstances to help tackle homelessness, for example. We need people trained to work with those suffering from addiction to help tackle drug abuse. Not every issue is a criminal justice issue, and we need to use more of our tools. This will help take pressure off law enforcement and allow them to do what they are trained to do.

For decades, I have advocated for criminal justice reform so that law enforcement could better serve and protect our communities. Throughout that time, I have met with families and learned about many of those killed by police, including Steven Askew and Darrius Stewart in Memphis. The George Floyd Justice in Policing Act sends an important signal that a bipartisan majority in the House of Representatives is ready to directly confront these issues. That bill would make crucial improvements, but still more will need to be done to truly reform our criminal justice system and ensure that every American is offered Equal Justice Under Law. 

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