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Criminal Justice Reform in the Wake of The George Floyd

Specific Ideas for consideration - Grammar Errors, Spelling Errors, Thought Errors and all

DIvision Between Warrior Cops & Community Policing

Specialization in Policing

“Warrior Cop” is a term that is becoming more and more common in the news lately.  The term was coined by Radley Balko in 2014 book Rise of the Warrior Cop: The Militarization of America’s Police Forces.  It is a must read for anyone interested in criminal justice reform.  Balko succinctly explains how we moved from white police cruisers used for community policing to black military surplus vehicles and black police uniforms. 

The truth is that we need Warrior Cops just as we need Community Policing.  But, it is unfair to both the police and the public to ask individual police to do both.  I would like to point to the U.K. model, and cite policing without sidearms but America is different.  America has tremendously more firearms on the street than other countries.  Additionally, the relationship between police and the public is more strained in America than it is in other countries.

Nonetheless, can we improve the way America polices?  I posit that we must or else the relationship between the police and the public will continue to decline.  But how do we do improve?

Whatever your job is whether it by a warehouse, a lawyer, a judge or even the military… think to yourself: am I expected to do fill all the roles at my place of employment on a daily basis?  I am willing to bet the answer is no.  You likely have some level of specialization at your employment.  Why do we expect every single officer to fulfill all the roles of policing on a daily basis?  Frankly, its not fair to the police officers themselves.

Years ago, I was in junior police academy and one of the first thing we were taught is that an officer’s most important and powerful weapon (or tool) was his radio and the knowledge that that radio will call in the full force of the state.  I’m afraid that may no longer be taught and that individual officers are expected to immediately contain a situation at all costs.  Again this is unfair to police.

Heavily armed Warrior Cops need to be available on call at a moments notice in America.  They need to be able to arrive on a scene and “dominate” as our President so inarticulately put it.  But most police interactions do not require dominance.  Most police interactions require compassion, de-escalation, understanding and a desire to help people.  It is not fair to ask our police, as individual people, to do both jobs on a daily basis and to be able to switch “modes” in an instant.

Wouldn’t it be better, for the police and the public if our everyday interactions with the police were conducted by police specialized in community policing.  The community police  would know they are not expected or required to use any lethal force because they have the warrior police only a radio call away.  The warrior cops would likewise be relieved from the significant daily stressors of social interactions and the possibility of being caught off guard and unprepared.  Finally, the public perception of police would improve and help to alleviate the growing tensions.

Body Camera Implementation

Mandatory Bodycams

The use of bodycams has become more and more common but it is far from universally utilized.  Moreover, the number of times footage mysteriously goes missing is concerning.  For that reason, it was remarkable to see the Louisville police chief fired for his officers failing to utilize their bodycams.

The use of bodycams should universally be applauded by the public, the police and criminal defendants.  The public should embrace bodycams as they provide accountability for bad and improper police actions.  The police should embrace bodycams because they will provide evidence in their prosecutions and evidence against false complaints against them.  Finally, criminal defendants should embrace the bodycam because it helps to ensure proper police conduct and may also provide defendants with evidence in their defense.

Frankly, their is no argument of weight against the implementation of bodycams.

Civilian Oversight Boards

Only viable if truly independent

Civilian Oversight Boards have been and will continue to be touted as a tool in criminal justice reform.  I have argued against them in the past but they are worth revisiting.

To truly be a tool for reform, a civilian oversight board must have the power and independence to conduct their own investigations and the ability to choose what they, in fact, will investigate.  All too often a civilian oversight board is treated like a grand jury, they are told what they will be “investigating” and are given the information their handlers wish them to receive and nothing else.  If not setup correctly, civilian oversight boards can often have the effect of unwittingly legitimizing bad conduct because their decisions and opinions are based only upon the information they are spoon fed.

A diverse and independent civilian oversight board could prove to be a great tool in criminal justice reform but without true diversity and independence, they may do more harm than good.

Expungements & Sealing of Records

Allow avenues of income rather than forcing the convicted further down a path of crime.

All too often a criminal conviction saddles an individual with a criminal record they cannot get out from underneath of.  The criminal record may send them down a cyclical path of recidivism.

Pennsylvania has slowly made strides in combating this issue through Lt. Governor Federman’s pardon reformation and the Clean Slate, expungement and limited access reforms.  But more must be done.

Currently all felonies and misdemeanor 1 convictions are publicly accessible for an individual’s life.  This means all thefts of $200 or more, most verbal threats, sales of marijuana, second offense DUI and other such crimes will weigh on individual down for life.  The direct benefit to society from this information being publicly available is questionable.  The indirect detriment to society is real.

These individuals are wholly capable of personal rehabilitation.  But, in many cases, their records prohibit them from being as productive members of society as they might be otherwise.  Further, these minor records often have to impact of encouraging further crime due to the inability of the convicted person to make a living.

Interestingly, many of these individuals, who do go on to become successful despite their criminal record, do so through self employment.  This is worth noting because we are forcing these individuals into rolls without oversight, further cutting against the argument to the retention of criminal records serves the public.

More must be done to facilitate relief from minor criminal records.

Prison Reform

Or, rather, restoration

Prison reform, or restoration, must occur.  We often discuss prison “reform” but might it be better to consider prison “restoration.”  Over three (3) decades ago many prisons maintained skills classes and trade workshops.  There used to be a focus on rehabilitation.  That focus has fell by the wayside over the past three decades but is making a resurgence, slowly.

Currently, few county prisons have substantive trade shops, job skills programs, mental health treatment and drug treatment programs.  Oddly, the state prison system still maintains more of the old vestiges of rehabilitation.  This is likely due to two things: the superior state budget and the NIMBY (not in my back yard) aspects of expanding county prison infrastructure and programing.

It is important to understand that an individual is sent to state prison when their maximum sentence is two (2) years or more but sent to county prison when their maximum sentence is less than two (2) years.  (DUIs are an exception).  This means that, in general, those convicted of more serious crimes will be sent to state prison and those convicted of less serious crimes will be sent to county prison.

The problem is that there are many individuals who are convicted of crimes which could send them to county prison or state prison.  This leaves a judge in the unfortunate position of choosing between sending the person to state prison or county prison.  If the individual is sent to state prison they may have more rehabilitative services available but will be housed with more dangerous criminal and must, by definition, be given a longer sentence than otherwise.  If the defendant seems too fragile to house with hardened criminal or otherwise does not warrant a longer prison sentence, they may be sentenced to county prison but will have less rehabilitative resources.

We should restore funding to our county prisons/jails to restore, rather than reform, the rehabilitative programing for those that can most benefit from it so that they do not come back again and end up going to state prison anyways.

Reapportionment of Litigation Costs

The European Model to Reduce Overcharging in Criminal Prosecutions

Many are outraged at the level of charges brought against Derek Chauvin because they believe the charges should have been more serious.  I too am outraged, but not because I believe Mr. Chauvin should have been charged with more serious crimes.

I do not believe the charges should have been more serious, although they could have been.  Mr. Chauvin was charged with a crime that the prosecution will very likely prove at trial but he was not charged with higher crimes that are much less likely to be proven.  Mr. Chauvin was not overcharged, as he shouldn’t have been.  In short, I am outraged because the criminal justice system is operating correctly for Mr. Chauvin while it operates incorrectly for the vast majority of those charged with a crime.

How can we make the criminal justice system work correctly for everyone?  We must reduce overcharging.  Other countries have already solved this problem.

For decades, a defendant who is acquitted of a charge in the U.K. is entitled to have not just his legal fees reimbursed by the government but also his travel expenses and other expenses.  (although these rights have been more limited since 2012)  These orders are called Defendant Cost Orders.

As the American system currently operates, a citizen has lost the very moment he or she is charged with a crime.  Should they successfully go to trial and be acquitted, there is no reimbursement for legal fees and no reimbursement for pre-trial imprisonment.  The mere “act” of being charged with a crime will cost a citizen thousands of dollars even if acquitted. 

The prosecution is free to overcharge defendants without any consequence.  The accused is forced to litigate at his own expense (unless he is near the poverty line and eligible for a public defender) with no possibility of reimbursement.  Over top of this, his freedom is in jeopardy.  For the criminal defendant, a win is merely the minimal possible loss.  He never returns to where he started, he never reaches zero sum, despite how innocent he may be.  The prosecution, on the other hand, has won by the very act of charging.  No matter how innocent the defendant may be, the worst outcome to the prosecution is reaching zero sum.  The prosecution may lose the case but they only end up where they started.

The only logical thing for the prosecution to do in these circumstances is to overcharge, so as to induce pleas.

Real criminal justice reform cannot occur until this problem is addressed.

Victim's Rights

The Right to Not Prosecute

Victims’ Rights are yet another bantered about phrase in criminal justice.  Victims’ rights should be respected along with the right to not prosecute a case.  The basis for state prosecution against the wishes of an alleged victim stems from domestic violence.  The legislature no doubt means well when they advance the philosophy of pursuing prosecutions against the wishes of alleged victims.  However, such prosecutions are a waste of public resources and often cause hurt the alleged victims.  Moreover, this philosophy is not limited to domestic violence cases.

Earlier this year I had the pleasure of representing a fine veteran who served multiple combat tours.  Having just returned home from active duty, he found himself the victim of a crime committed by a group of young gentlemen.  He wished to decline the prosecution of the case because he did not want these young men saddled with a criminal record.  His failure to be complicit in the prosecution enraged police and led to criminal charges against him and a temporary conviction… for being an uncooperative victim.  While we were able to have the conviction overturned, the financial and personal damages to this victim will never be reimbursed.

In many other cases, including domestic violence, victims are forced into hiring counsel, at their own expense.  Often I have been hired to represent victims who have been threatened with prosecution.

Refusing to allow victims the right not to prosecute hurts victims, degrades faith in law enforcement and creates a tremendous drain of resources.  It also operates under and enforces the assumption that the accused are already guilty.

While I understand the legislature’s lofty goals of protecting against domestic violence, the effect on the ground of these policies is not what was intended.

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