Terry H. Schwadron
Jan. 1, 2020
Expectations are high for the New Year to bring real change in the biggest problems we face, from pandemic and its economic ills to attitudes towards climate and institutional racism.
That’s what we had thought the November elections were all about — at least until Donald Trump turned them into an almost never-ending fantastical soap opera about how he was robbed by millions of voters who wanted him out.
Indeed, a lot of pressure on the incoming Joe Biden administration has circulated around the fervor he can create to tackle a national social agenda aimed at fairness and starting with recognition of our American shortcomings. Biden has drawn both praise and criticism for choosing a Cabinet that “looks like America,” specifically because it has stressed its number of “firsts” in nominating agency leaders who are Black, Latino, Women, Native American or gay.
Voices like Tucker Carlson on Fox have bitterly attacked “identity politics” as singling out race or ethnicity as the sole criterion for Biden appointees — an absurd statement that ignores the collective experience and actual background. But emerging from all this talk has been particular attention to the pending announcement of an attorney general candidate to be the nation’s top law enforcement officer in a time of heightened concern about racial injustice at the hands of policing agencies around the country.
Just this week, we saw two examples: In Louisville, the police department was moving towards firing two officers who burst into the wrong apartment and shot Breonna Taylor dead and wounded her boyfriend, and misleading authorities about what they had done; a third had been fired for violating the department’s deadly force policy. But there were no state or federal criminal charges that have been filed.
In Cleveland, the Justice Department said it was passing on filing charges against two police officers who five years ago shot and killed Tamir Rice, a 12-year-old boy, in a city park within seconds of arriving at the scene and without determining that he had been playing with a toy gun that looked real.
Both cases have been at the center of national anguish over police treatment of Black citizens that came to a head with the police killing of George Floyd in Minneapolis this year — and a series of killings in which few criminal charges are filed, let alone murder charges.
Justice and Civil Rights
The Trump administration Justice Department has been marked in significant part by its retreat, in general, from Civil Rights enforcement and actions aimed at police departments in particular. This is true over the terms of now four attorneys general under Trump in four years. The Justice Department turned away from actions of predecessors in the Obama years who had filed legal cases to force changes in policing techniques and training.
In announcing its decision to walk away from the Cleveland case, the Justice Department cited a lack of evidence in the high-profile case that would point to successful prosecution. More precisely, the Justice Department noted that they could not establish that the officers involved in the killing willfully violated his civil rights or that they knowingly made false statements with the intent of obstructing a federal investigation.
Investigations of both the Taylor and Rice killings took circuitous routes, with starts and stops in the various legal processes through grand jury proceedings, politicians who sought to distance themselves from the tricky politics, and popular reaction to all of it from protests in the streets. Nevertheless, few of the basic facts changed all that much through the investigations, discussions about police cameras or other procedural issues.
But, in summary, the Justice Department insisted once again that successfully prosecuting police represents a very high legal bar. This is the same argument that local and state prosecutors — who must continue to work directly with police departments — have used; they only want to file charges when they feel they can win the case, that high bar that may include determining intentions as well as effects.
The long list of statistically biased police actions against Black citizens may have served to accelerate discussions about America and Race, but the institutional difficulties in holding individual police officers legally to account in these cases has not advanced in equal proportion. It is very difficult to prosecute police officers over questions of judgment.
The Biden Question
For many, the decisions in these two cases are broader than what happens to handful of officers involved. That is exactly why the questions facing Biden in choosing a new attorney general — regardless of the ethnic identity of the individual — will center on just how aggressive this individual will be about Civil Rights.
The new attorney general is going to have to grapple with the realities of law and police union contracts as well as with perceptions that we have a built-in national bias against holding police officers to an understandable legal standard.
“This high legal standard — one of the highest standards of intent imposed by law — requires proof that the officer acted with the specific intent to do something the law forbids,” the Justice Department said about the Cleveland case. “It is not enough to show that the officer made a mistake, acted negligently, acted by accident or mistake, or even exercised bad judgment.”
I would hope that views on policies that the Justice Department is reflecting will be a central part of any confirmation hearings for a new attorney general. It is a discussion that should have little to do with party partisanship, and everything to do with American values of fairness and accountability.
Let’s Make America Fair.