America’s legal system is out of control. Not out of control in the sense that we can’t do anything about it — only in that as a system, it has lost all control of itself.
It exists only to perpetuate its own existence, without strategic objective or goal. These days, stories of police brutality and abuses of power are so utterly rampant that it’s almost become a sort of tragic cliche — like prison rape.
Yours truly has written no less than three different stories on police brutality today alone, with another one in the pipeline. Something must be done, and it somehow seems unlikely that any number of blog posts will do it — no matter how snarky, long-winded or ironic their hipster-esque self-references may be.
This issue is a highly complex one, an interconnected web of socioeconomic causalities spanning decades of graft, greed, racism and good old fashioned political demagoguery. The very nature of the problem brings to mind the legendary Gordian Knot, a massive bundle of rope tied into one big knot made up of thousands of smaller ones.
It was said that whoever could untie the Gordian Knot would become King of all Asia. But the knot had no exposed ends, and thus no way of even beginning to untie it. Many tried, but no one could begin to solve the puzzle.
That is, until (according to legend) Alexander the Great found a way. When presented with the challenge, he simply drew his sword, and with one mighty stroke cut the entire knot in two. The Gordian Knot fell to pieces, the prophecy was fulfilled, and Alexander proceeded to conquer all he set his eyes upon.
Your author is no Alexander the Great — Alexander had far better hair. Obviously. But the problem with Law Enforcement is little different from the puzzle of the Gordian Knot, and the solution seems much the same. The seven ideas that follow are less a sophisticated and subtle untying, less an elegant sword even, than a massive, rust-blunted battle axe aimed squarely at cleaving this particular issue in two. Let FOX & Friends snip at splitting hairs — we’ve got bigger things to cut around here.
(Note: These reforms are partial summaries of a much larger and wider spanning collection of reforms in a single chapter of “A Citizen’s Nation — Taking America Back, One Way or the Other.” Other chapters include Economic, Taxation, Political, Electoral, Foreign Policy and Social Reforms, designed as a system to return our nation control over its own fate. As of now, it’s unfinished, and probably will remain so until I can find time to complete it. But, if you like this article, and its rusty battle-axe approach to reform, or have any suggestions, feel free to say so in the comments section.)
1) Revoke Officer “Trained Observer” Status
It might sound cute and fairly innocuous, but this anachronistic policy has sent more innocent people to prisons, hospitals and morgues than perhaps any other in history. That’s why it’s first on the list — and also because it’s a near pre-requisite for everything else. But what does trained observer status mean?
What it boils down to is this: If an officer says it happened, then it happened, because he’s “trained to observe.” Note the subtle difference between “trained to observe” and “guaranteed not to lie.”
But in a courtroom, a police officer’s word is literally law; even if a judge doesn’t personally believe a word of what the cop says, he’s bound by law to act as though he does. In the eyes of the law, this anachronism makes every police officer’s eyes high-definition cameras, his ears radio telescopes, his nose the quality of a circling turkey vulture’s and his memory as flawless as an MP3 player’s.
But it doesn’t make him honest.
If we’re going to get anywhere at all, we have to accept that cops are humans, and humans will lie when it suits them. Especially when they know that lie will never be questioned. Can you think of many people who wouldn’t? Putting on a uniform and jackboots doesn’t change the basic morphology of the brain, or basest parts of human nature. It only guarantees that when a human decides to act like an animal, he’ll never be put in a cage.
2) The Mighty Glass Eye
Having read three paragraphs back, you probably already saw this one coming. If police can’t be trusted to record things accurately, than what can we trust? Machines that are…designed to record things accurately.
In this age of “no pic, didn’t happen,” why is it that we’re so slow to demand that cops provide proof? Once we revoke a police officers trained observer status, his word is no better than anyone else’s in court. But police by definition need a means of relaying information to the court; is it so insane a notion that we should use all technology at our disposal to provide that evidence?
Yes, 20 years ago, you could make a case that putting cameras and microphones on police officers was impractical. But that was when a “small camcorder” was the size and weight of a bag of dog food, and cost as much as a pure-bred Shih Tzu. Now, you can walk into any Walmart (or preferably Target) in the country and buy a video/audio recorder the size of a lighter with 12 hours of HD recording capacity for $200. The cheapest go for less than $20. So, the notion that it would be “financially impractical” to put cameras on cops is as utterly absurd an anachronism as trained observer status.
So, why would any police department resist using a tool that would provide even more evidence in court? Probably the same reason a lot of them resisted dashboard cameras back in the 1990s.
Try this sometime: Ask a police officer if he’d be averse to the idea, and why. After three minutes of squirming and throat clearing, feel free to ask him what he has to hide if he’s only doing his job. The public pays these people 10 hours at a time, and the public has a right to know what its employees are doing with that time.
One technical point: Every officer should have four cameras…four tiny glass eyes. One on their vest, two on a head-set facing forward and backward, and a fourth “gun camera” on their service weapon set to start recording any time the weapon is out of its holster.
No pic, didn’t happen.
3) Prerequisite Conviction for Resisting Arrest
One of the most maddening things about police brutality cases is how often the victims are arrested for “resisting arrest” — and only resisting arrest. Police know they have the power to hit anyone at any time with a felony for resisting arrest, whether they had reason to attempt arrest in the first place or not. Jails are full of people whose only charge is resisting arrest, or the adjunct “failure to comply,” or “obstruction of justice.”
Under the current system, a police officer could walk up to anyone on the street, and tell them to put their hands out for cuffs. If the person asks them why, or in any way fails to immediately comply, the officer now hypothetically has grounds to arrest them for resisting arrest or failure to comply.
This abhorrent loophole effectively gives police carte blanche to throw anyone in jail, any time, whether they’ve committed a crime or not. And acquittals on these cases are extremely rare, because trained observer. If the officer says you “resisted arrest” or “failed to comply,” you have de facto committed the crime for which he arrested you.
The system your author proposes is one of prerequisite conviction for any resisting arrest charge. Meaning that you must be convicted of the exact crime the officer charged you with during the attempted arrest before the state can press charges for resisting arrest. If there’s no conviction for the original offense, there are no charges for resisting arrest, failure to comply or obstruction of justice. Period.
Note two particulars here: This wouldn’t apply to assault on a LEO (no pics, didn’t happen), and the state be wouldn’t eligible to press charges for resisting if the charges are plead down to a lesser offense. If you’re not convicted of the thing you were arrested for, you shouldn’t have been arrested for it in the first place. (see No. 6, Plea Bargaining)
4) Classify License Plate Information as Private
This might sound a bit pedantic, but it’s more important than you might think.
Once you’re in the system, you’re in the system. If you’ve ever been arrested for possession of pot, been on probation, or had any interaction with law enforcement or jail, there’s an extremely high probability of police harassment later.
Many modern police cars have cameras and software that automatically identify license plates, send the information request, and tell a police officer everything about you in real time. Typically including your picture, gender and race. And even police cars not equipped with this system have on-board computers that will give the same information almost as quickly.
This isn’t just a problem for former foul criminals — especially not when you consider the degree and severity of racial profiling today. How high do you think the likelihood of “smelling marijuana” is if that computer displays a black face in Missouri, or the name “Achmed” in Texas? Or if your name has too many vowels in Los Angeles? Or if you had a DUI ten years ago in another state? The ability of officers to see your face and know everything about you without any just cause for knowing it does nothing but encourage harassment and profiling.
Your author will grant that some degree of identification is necessary; it’s good to know if the person ahead of you has a warrant out for their arrest, an expired tag or suspended drivers’ license. Fair enough. But that information can be vetted through a computer or dispatcher without sending all of your information to the officer. If you have a warrant or suspended license, green light to pull over, and here’s the rest of the information. If not, mind your own business, officer.
The proposition here is simple: A cop has no right or reason to know who you are, what you’re doing or what history you may have if they don’t have cause to arrest or cite you. That doesn’t change because you’re driving down the street instead of walking down it. Personal information attached to your license plate through the DMV should be protected against unreasonable search in the same way as all other forms of state or government identification.
5) Require Proof of Probable Cause in Court
It’s our contention that every officer should be required to prove probable cause in court before any other charges may be pursued. Again, this goes back to revoking trained observer status.
“Judge, I smelled marijuana.”
“Did you officer? Can you prove that?”
“No pics, didn’t happen.”
6) Eliminate the Plea Bargain
We can hear your mentally screaming a three-letter phrase that starts with “W” and ends with “F” right now. And this is getting dangerously close to a follow-up article on fixing the entire legal system. But, painful as it may be, killing the plea bargain will go a long way toward reducing prison populations, arrests and police encounters of all kinds. To understand the impact here, a bit of history might be helpful.
Plea bargaining, or confessing to lesser crimes for a reduced sentence, had been broadly outlawed under English Common Law by the 18th Century. The practice was outlawed because of its broad-spanning potential for miscarriage of justice, and extraction of false confessions under duress. Of course, “under duress” in England at the time often meant torture and thumbscrews; but even more often, it meant simply slapping someone in chains, and throwing them into a dirty, dangerous dungeon until they were willing to say anything to get out.
In the 1930s, after passing Prohibition (note), the U.S. legal system was near imploding under the weight of all its recent arrests. Much like the aftermath of the War on Drugs, crime skyrocketed and jail populations increased eight times over. Something had to be done, and that something was the plea bargain. States would induce those arrested to sign false confessions to lesser crimes, thus saving the state the time and money it took to prosecute them. It all became very…efficient.
But justice isn’t supposed to be efficient. Justice isn’t supposed to be cheap. It’s supposed to be JUST.
One assumes our forefathers knew this, which is why they wrote in the Constitution that every man was due his day in court. Make no mistake; our founders knew all about the practice of plea bargaining. It’s well known that American Law was derived from English Law, and the practice of extracting plea bargains under duress had just been outlawed in England when they wrote the Declaration of Independence. The practice was well-known at the time — but the founders chose not to include it as an option in our Bill of Rights. Can’t imagine why.
Maybe it was because the idea of slapping someone in chains, and throwing them into a dirty, dangerous dungeon until they were willing to say anything to get out just seemed so…medieval.
There are four vital take-aways here:
- The plea bargain was designed almost exclusively to efficiently prosecute low-level “drug” offenders under draconian prohibition laws that were later repealed. That they also efficiently processed violent gang members was a side benefit…but then again, the very existence of those gangs was a side-benefit of Prohibition.
- Plea bargains aren’t meant to keep people out of prison…they’re designed to put more people in prison.
- Cheap, efficient prosecution encourages more arrests on more dubious evidence, and levying of more severe charges on arrest. This, in turn makes bond higher, which closes the circle of duress rather nicely.
- Plea bargains were outlawed specifically because they encourage confession under duress. Duress, like, ohhh…say keeping you locked up in jail for the next two years on a $100,000 bond while you bounce from court hearing to court hearing.
In short, the plea bargain is now and has always been a tool for railroading confessions in cases that the court wouldn’t have bothered to prosecute otherwise. Imagine what would happen if courts didn’t have the option of pleading down — they’d be forced to reduce sentencing on minor offenses, or drop low-level cases altogether, just to keep the jail from exploding. And police, well aware of the jail-explosion situation, might not be so inclined to arrest every kid they found smoking a joint.
Yes, killing the plea deal would be painful at first, like ripping a waxed strip off of a sensitive area. But when the redness goes down, and the crying abates, we’ll all be left with naught but the silky smooth skin of true justice.
7) The “Special Duties” Amendment– They’re Not “Special” Duties When They’re Your JOB
We saved this one for last because it may be the most important of all — official creation of a legal “special duty” amendment for police, either on the state or Federal level.
Consider this: An entry-level soldier in the U.S. Army gets paid about $1,300 a month, while in boot camp, and about $16,800 a year afterward. For that, we get a person who flies off to exotic foreign lands to kill people, while those same people are on a daily basis trying to kill him with guns, bombs and rabid camels. For $16,800 a year, we get someone willing to endure Hellish conditions for months or years at a time away from his family, while every single day waking up knowing it could be his last. And if not his, then maybe someone he knows. All for love of his country, and the pride of serving his community. All that, for under $16,800 a year.
The average police officer makes $47,623 a year — almost three times what a starting soldier makes.
Granted, out of that salary must come room, board and food. But that room is in their own home, with their own family, the board is their own comfortable bed, and the food (judging by the physique of the typical cop) is probably pretty well removed from the average soldier’s K-ration. And then there are the perks, including a company car. Granted soldiers also get company cars, but those do have an awful tendency to get exploded with RPGs and IEDs. But soldiers accept that — it’s part of the job we pay them to do.
So how is it that we’ve come to expect less of people we pay three times more?
As clearly as possible, absent the legal jargon, the basic nature of our proposed federal/state “Special Duty” Amendment is as follows:
- An officer’s primary job is to work toward the betterment of his/her community — the power to arrest people is a necessary component of that duty, but arresting members of the community is not the officer’s primary function.
- Police-work is not a “zero-risk proposition” (Bill Maher). You, the public servant, are being PAID to get shot at so we don’t have to. Your job is to cover OUR asses, not your own. This is your job…and you’re damned well expected to do it, or die trying.
- All members of all law enforcement organizations are expected to take any opportunity to risk their lives for any member of the community, be they rich or poor, black or white, or even a suspect in a crime. It is the officer’s duty to treat all persons, even those they’re arresting, as members of that community, subject to the same protection from harm as any other person. And yes, that includes protection from other officers.
- If an officer is accused of failing to perform in his Special Duties, he is to be placed before a jury of local community members. They, representing an economic and racial cross-section of that community, will decide if the officer has violated his “special duties.” If so, the officer is subject to termination and permanent barring of any future work in law enforcement.
ADDENDUM: Establishment of a national database for tracking cases of police use of force, suspected police brutality and racial profiling.
ADDENDUM 2: Establishment of a “balance” clause for hiring in police departments. Whatever the racial or ethnic makeup of the police jurisdiction may be, the police force should reflect that as closely as possible. If the community is 75 percent black, the police force should be as well. If it is 95 percent white, the police force should be.
Isn’t it sad that it’s come to this? Sadder still that we should even have to say it, to have to define the concept of a “public servant” to those very people.
There was a time when police officers were respected, even among the criminal community, as public servants. Cops were once our heroes, our icons and role models; they were the people we knew we could call on for help. They were the good guys…even the bad guys understood that cops risked their lives daily “to protect and serve.”
Now, we must always consider the excruciating possibility that when we call for help, we may well be summoning our own executioners.
For most of our nation’s history, the death of a police officer was a tragedy. Now, it’s mourned by law enforcement, but everyone else sheds a public tear, and shrugs a private shoulder. We’ve lost our love for law, or at least those who use it to protect us. We miss the simplicity (once so sadly taken for granted) of knowing that the good guys are never more than a phone call away.
We miss our heroes.
I believe that someday, in some distant future, we may get our heroes back. Certainly, this cycle of violence, brutality and injustice can’t continue upward forever. I hope I live to see its zenith, and fall.
But, if you don’t want to wait for it to fall on its own — here’s your battle axe.