As long as I’ve been doing stories on fascist policing, I’ve been clear that one vital element of fascist policing is that the people who do the policing are unaccountable to the people they police. Despite the occasional officer arrested for sex abuse of a relative or stealing and reselling shipments of drugs, law enforcement officers in the US are almost entirely unaccountable for the things that they do in the process of enforcing the law, even when those actions are patently illegal.
A story came up recently that I’ve been intending to write about, but I didn’t know exactly what I wanted to say until Stephen Robinson at Wonkette said it first. The story is about a family who parked in an accessible space. They may very well have done so illegally – I don’t know and I don’t care. The point is that some rando white dude decided it was up to him to confront this family for having parked there. Voices were raised. The family member who was inside the store during this verbal altercation came out, and looking to defend the people who had remained in the parking lot, pushed the aggressor. The aggressor fell down, and the person who pushed the aggressor backed away.
All that is yucky enough. No one wants to be pushed to the asphalt and no one wants to be yelled at about their parking either. But rando the citizen enforcer then took out a gun and shot the person who pushed him.
It just so happens that the person who did the pushing is Markeis McGlockton, a black man, and the gunshot struck his torso and killed him dead.
The Florida sheriff’s department responsible for the area promptly responded and cleared the mighty white shooter, Michael Drejka, of any possible wrongdoing. And that’s where we get to the heart of why this story falls under the heading “fascist policing”. Drejka appointed himself the enforcer of parking laws and acted in a physically threatening and verbally aggressive manner in so doing. McGlockton briefly escalated the physical aspect of the confrontation by pushing Drejka in defense of McGlockton’s family. McGlockton then backed away. Drejka then made the choice to kill McGlockton dead, denying McGlockton and his family any future love and comfort that they might have given each other between now and the end of fucking time. Because some Black man had pushed him back, and he fell down.
And the cops? Perfectly fine with this. They side with the white guy enforcing laws he had no business enforcing, the white guy causing a public disturbance and making people of color afraid. What Stephen Robinson says next makes me ashamed that my legal education didn’t have me saying it first:
McGlockton’s death is tragic and senseless, but the county’s refusal to hold Drejka responsible essentially renders it a state-sanctioned killing. I can’t help but think of the Dred Scott decision, where Chief Justice Roger B. Taney declared that black people had “no rights which the white man was bound to respect.”
I agree with Robinson, though I would remove the qualifier “essentially”. The state has investigated the killing. The state has approved the killing as legal. The state has – not essentially, not kind of, not mostly if you look at it in a certain light – the state has fully sanctioned Drejka’s killing of the man Markeis McGlockton.
One could say more, of course. One could name specific killings in Florida and out by vigilantes or cops that place the killing of McGlockton in context, but you’re already familiar with those killings, too many of them anyway even if not all of them. The same city that provides the business license to sell toy guns to kids shoots kids for carrying toy guns. The same county that orders a rando entitled man to back off his stalking of a black teenager happily validates his murder of that same teenager, that same night, right at the scene of the crime.
The US is a society that does its utmost to find a way to justify the most brutal violations of Black lives. Many of us, even in Taney’s day, would use different language in doing so. Some of us stand against it, though too few and too meekly to put a final end to the process. But we cannot deny that we have rendered those who chose to police black lives, whether as cops or vigilantes, unaccountable to the Black communities of the United States of America.
Similarly to my post recently on women’s violent self-defense, I fear that no government of any significant size within the US borders – and certainly not the federal government – will see this fascist policing as the desperate problem that it is until the John Browns and the Fred Hamptons outnumber those who happily murder John Browns and Fred Hamptons. For the murders of John Browns are mere acts of justice and the murders of Fred Hamptons are merely an endless string of regrettably unpreventable isolated incidents, but the killing of a single, off-duty white cop who puts a black man in fear for his life in a Stand Your Ground state? Well, we all know that’s a race war that money and power will do anything to end.
And so, with regret, even though I much prefer a nation without any guns at all, I must now advocate for the creation of a well-funded non-profit in Florida to increase concealed carry permits in Florida’s Black communities, to educate Black residents that they have the right to shoot to kill at any white person or any other person who puts them in fear for their lives, and to educate Black residents that randos attack Black residents without being held accountable by cops, and thus their only protection is taking responsibility for their own, physical self defense.
I wouldn’t want to actually start selling subsidized guns below cost because I think that there would be the unintended consequence that if there were more guns on the street – even if all the guns were properly licensed and sold only to people who had been approved for the appropriate permits – cops would kill even more innocent people. But I think the increase in permits combined with the perfectly honest and factual education campaigns suggested above would be enough to cause outright panic in Tallahassee. If that didn’t cause the immediate repeal of Stand Your Ground, then we could consider beginning to purchase low cost handguns to sell to people with newly approved concealed carry permits. I really can’t see Florida maintaining SYG at that point.
The state of Florida simply doesn’t care that SYG laws are linked to more Black deaths. Freedom to wave a gun around is more important than Black lives to the money and governments in that state. It will only end when white people controlling white fortunes fear that someday soon they might face the same risks of slaughter in the streets as Black people already face today. They will, of course, never admit that racism has anything to do with why they once tolerated SYG but then reversed course. But ending this racist, violent nightmare of a law will be a major victory in itself.
Sort of like the Black Panthers in California in 1967.
Yes
What are your ideas for fixing the inherent problem of lack of prosecution? I still really like the idea of restoring the rights of the victim (and family of the victim) to pursue a criminal indictment in a government-operated grand jury, and to pursue the criminal prosecution in a government-operated court, where the prosecutor is the victim themself, or one of the family of the victim if the victim is dead, incapacitated, or otherwise unavailable, or an attorney of their choosing. Have you given any thought to this approach? Or do you consider it simply politically impossible and not worthy of consideration? Do you think it’s any more politically impossible compared to civilian review boards for cops and prosecutors? Would civilian review boards for cops and prosecutors even fix this sort of problem – I suspect not. I want a return of private justice, of justice between the victim (or family of the victim) vs the offender. Not justice by literal physical combat, but instead justice through a contest in an arena designed to increase fairness and find the truth, e.g. a court of law, operated by the government, and administered by a nominally neutral judge, who arbitrates the ritualistic combat of argument between two equally biased sides – the victim and their attorney vs the offender and their attorney. (Of course, the claimed victim and the accused offender.) Bring back the sporting theory of justice. Not because of some toxic masculinity reason that justice comes from a fight, but simply because I don’t know a better system.
Of course, in my preferred system, the victim (or family of the dead victim) may choose not to personally pursue criminal prosecution, and then the right of prosecution should devolve to the general public, i.e. the government prosecutor. I’m just saying that the victim (or victim’s family) should have the right of first opportunity to seek indictment from the grand jury, along with the necessary rights of prerogative and deference e.g. the grand jury shouldn’t deny an indictment to the victim (or family, or chosen attorney) just because the government prosecutor might hypothetically be better equipped or better funded.
This sporting theory of justice works fine for civil offenses, and historically we used it for a long-ass time for criminal offenses too. We should bring back the sporting theory of justice for criminal offenses, e.g. we should bring back the right of the victim (and family of the victim) to personally (or through an appointed attorney) seek justice in a court of law against their attacker, because I don’t know of any other way that we as a society can bring justice to situations like the OP.
Now, i went to law school in canada and that my knowledge of US law is extensive for a lay person, it’s really not equal to a US lawyer – probably not even a pretty bad lawyer even though I went to a pretty elite school. Remembering that and thus taking my opinions about the state of US law with a huge grain of salt, I think the barriers to prosecution have much more to do with the state of the law than the identity of the prosecutor.
I don’t think it would be bad, per se, for people to have the option of going forward with prosecution without the help of a government prosecutor. But we all know how bad is the problem of cops lying to protect other cops when investigated by their own departments or county D.A.s. Imagine a cop engages i behavior that seems to be a clear crime with an easily identifiable victim, but is shielded from prosecution by their department and their local D.A. Now imagine that the victim goes to a grand jury to get an indictment. Where will they get their evidence? From lab results, the police investigatory notes, and from the cops’ testimony before the grand jury.
Is there any possible way that the police would be more forthcoming with damning testimony against a cop who was already declared innocent by a local DA and thought the investigation in the past than they would have been in the first hours after the crime? I honestly don’t think that there would be.
Now, given that, you can still subpoena lab results and investigators notes, but the way that the system is set up, it is assumed that prosecutors and cops are on the same side. There are penalties for withholding evidence from the defense, as nominal as those penalties may be. There are no penalties for withholding evidence from the prosecution, because it’s assumed that the cops want successful prosecutions so the failure of a prosecution is its own “punishment” in this system. However, if the cops aren’t interested in a successful prosecution, their punishment is their reward.
This doesn’t mean that you couldn’t have such a system, but you’d need an entirely new set of law for it to operate effectively. It would also have to be a small adjunct to the justice system, otherwise you would routinely deny justice to poor victims or victims without the education to understand the significance of a certain detail in a certain pathology report. There are good reasons to pay money to people to perform a prosecutorial function full time, no matter the wealth or poverty of any victims. We wouldn’t think it was ideal for a separate laboratory system where victims can pay to have tests run on certain pieces of evidence, or do it themselves if they know how. Likewise the experience of a prosecutor has the potential to substantially increase the likelihood of justice.
I’m a critique of the system as a whole, as I know you know, so I’m not saying that the current system with its twisted incentives is good for justice. But as we dismantle the current system and think about what should replace it, I’m suspicious of relying too much on victims to perform the work of a prosecutor.
We need a dramatic overhaul of the laws of immunity, among other things, to make it possible for anyone to successfully prosecute wrongdoers who are acting as prosecutors or law enforcement. If we achieve that, I’m fully open to having an auxiliary avenue for prosecutions where victims or other injured parties take evidence directly to a grand jury without state prosecutors’ participation.
Oh, I spend a lot of time considering things that aren’t politically possible (at least now). I know you remember when we had that blowout where I merely said that government could be fairly said to use violence but not to be violence without a very weird definition of violence, and that led to just weird talking past each other for hundreds of comments.
But do you remember in the middle of that conversation when I suggested a method for taxation without threat of arrest or prosecution? It was all carrot, no stick.
Basically, you attach conditions to the ability of banks to borrow money from the Fed. Banks go belly up if they don’t have easy access to short term loans at very low interest rates. You use these conditions to have the banks garnish taxes directly from bank accounts when they aren’t garnished directly from a wage-payer already. People can choose to try and go all-cash, but that’s going to make it very hard to do quite a lot of things – including find stable employment. People can file a tax return if they wish and if they think they’ll get a refund, but they don’t have to and the government never pursues taxes they suspect (or even can prove) would normally be owed but which were never collected because of lack of employment and/or lack of a bank account.
There will be gaming of the system, sure, but there’s already gaming of the system, and the modern conveniences of a bank account that can be used to make online payments and make it less likely you’ll be robbed will ensure that the vast majority of people pay their fair share.
I don’t think that’s politically possible anytime soon, but it’s practically possible right now. It would be easy to collect enough taxes through this methodology to carry on the functions of a modern government. Cheating would exist at a consistent but minor rate, same as today. It’s possible that some people would game the system more seriously, but one of the conditions on banks receiving Fed loans might be not to hold accounts for or lend money to people on a do-not-lend list. The ban on accounts would only be a penalty after the back taxes were paid, but there’s no reason such a penalty couldn’t be applied years into the future. Cutting people off from the ability to borrow could have immediate effects: if you’re wealthy enough to own your own home but still have a mortgage, doing your business all in cash won’t stop the bank from calling in your loan. Overseas accounts are already accessible to IRS garnishment with proof that taxes are owed, so it’s not like a person or corporation could get away with exporting money.
None of this requires physical arrest, jail time, corporal punishment, or anything else that remotely resembles violence.
But yes, it’s politically impossible, and no, that doesn’t stop me from thinking about it.
Well, I think that “civilian” prosecutions are politically fringe, but I think whether it’s more or less accomplishable than implementing civilian review boards is highly dependent on the politics of each individual state.
I think some states – I don’t know, maybe New Hampshire, given it’s political culture – might go for it. As I’ve said previously, without dramatic reforms to other institutions and laws it’s going to be ultimately ineffective at reigning in (much less punishing) bad cops & bad prosecutors. That might be a point in its favor in places like New Hampshire. A cop who merely refuses to turn over evidence to a prosecutor is currently potentially subject to professional review, but on its own isn’t treated as a crime in any jurisdiction I’m aware. You could try to make a case for obstruction, but creative incompetence will make that tough to prove. Moreover, if you’re in danger of being prosecuted for murder, withholding evidence and turning the threat into a long-shot prosecution for obstructing justice is a huge win.
As for CRBs, I don’t know of any that function well at this point. To do its job right, it would have to – at a minimum – be able to suspend or fire cops at its whim and also to decertify those cops (or suspend/revoke the law licenses of prosecutors), without subject to any professional, executive, or legislative appeal. There are current CRBs that supposedly have the power to fire, but such strong recommendations are rare, and even when presented are usually overturnable (and overturned) by the chief of the agency for whom the fired employee works. Something like appointment by a state supreme court to a two year term, renewable no more than twice, might sufficiently insulate the CRB members from politics to have a vague chance at doing their jobs. Even then, they’d have to liberally use their power to fire and revoke the credentials of police chiefs whose departments don’t fully cooperate with their investigations until there was sufficient culture change to make sure they’re getting full and honest presentations of the facts. If you not only fire a police chief, but also revoke their credentials for 5 years so they can’t take another job in law enforcement anywhere in the state, that’s a strong motive for chiefs to reform their departments. So yeah, it can work with the right people on the CRB and the right insulating layers between the CRB and political concerns.
Is THAT politically possible? I really doubt it. I’ve said it before and I’ll say it again, no proposal is ever really radical except proposals that would ensure accountability.
So effective accountability through CRBs is a remote possibility – in my probably insufficiently informed opinion – but while the creation of a system of auxiliary prosecutions seems more likely, actual effective accountability through such a system seems just as remote.
Still, that’s no reason not to consider it and talk about it: at some point people are going to significantly reform the justice system in the US, and we might as well have our ideas well thought out and their pros and cons easily arguable when they do.
I mostly handled this above: we have CRBs in most major cities, and though some are all gums and some have baby teeth, none of them offer real accountability. CRBs that could fix it can be imagined, but they don’t look much like the CRBs operating today, so I guess the answer to the question is Yes some version of a CRB can be integral to fixing these problems, but No, there is no current CRB that could fix this shit.
Yeah, I don’t mind the idea of competing sides putting forward arguments for and against a specific proposition (say, Person X has violated Statute Y, or previously established conviction A is better punished through Sentence B or through Sentence C). I don’t think that evidence shows we’ve come up with much better systems elsewhere in the world. Some of the alternatives, like Rwanda’s courts of reconciliation which were mostly a mediator/procedural guide + the adults in a random village trying to come to consensus on the appropriate response for the behavior of a random member of that village, worked better in their specific context than a US court might, but in Rwanda the facts were generally known and the ethical judgement that the village member’s behavior during the genocide was morally unacceptable was not in doubt.
In Civil Law countries the judge takes on a significantly different, more prosecutorial role. This also can work well, but if it is corrupted, addressing the corruption of a combo judge/prosecutor is hardly easier than addressing the corruption of a prosecutor who isn’t sitting on the bench. Where the civil law system works best, I would guess that it works better than the US system (but remember, I’m observing from afar). But where it works best, I think a significant component of what makes it work so well are the cultural components of it – what do the locals expect from their judges? What behavior does and doesn’t cross the boundaries of local professional codes of conduct? How strongly are different professional code violations punished and through what means? If we were to adopt a system with a more proactive bench, we couldn’t begin to see if the system was better or worse until we’d answered all these subsidiary questions – which would probably take at least two generations.
Instead, I think that the best aspects of the civil law prosecutorial tradition would be better and more quickly adopted by changing the reward system for prosecutors. Imagine a system that stripped law licenses from prosecutors who commit Brady violations but gave cash awards to every prosecutor who proved that a previously convicted criminal was actually innocent? The state incurs real costs when it imprisons a person, and if that person was innocent, the person who saved the state money might reasonably be rewarded. You could do this by empaneling a separate office of verdict integrity and then either
1. having them take over the defense of guilty verdicts against certain types of appeals and requiring prosecutors with 5 years of experience to either serve in the office for a term of 2-3 years or leave the DA’s office entirely.
2. giving that office complete access to everything the prosecutors see, but with no supervisory accountability to the DA and having them provide Brady material to the defense and have them investigate every confession and every allegation of prosecutorial misconduct.
You could even do both – though I don’t think that giving them authority over Brady decisions will make any difference if they’re staffed by prosecutors serving out their term in Conviction Integrity and who are still ultimately answerable to the local DA. Forcing prosecutors to see things from another perspective is useful, but it undermines the incentive-changing power of reassigning responsibility for Brady disclosures.
Either way though, you gain significant improvements in the incentives for prosecutors. Neither is perfect, but they help. Combine that with regular suspensions of law licenses for prosecutorial misconduct, and the system will improve. How much it would improve is hard to say.
I understand where you’re coming from, but do remember that if the Stand Your Ground law isn’t changed, it doesn’t matter who the prosecutor is. A change in the prosecutor or the incentives built into the occupation of prosecutor can only go so far.
Yea. Sorry about that.
Maybe. You have just moved the enforcement problems from “everyone” to “everyone who runs a bank”, and so you haven’t completely solved the problem; you have just limited the scope of persons who is subject to compliance.
Given that I don’t think that the current system is a problem for the little guy, and they already do this sort of tactic for an overwhelming amount of the little guys, I don’t worry that much about it.
Moreover, given that in my ideal system, we would have significant (i.e. 99%) tax rates on inheritance for the filthy rich, I don’t know if this low-key approach is sufficient to achieve that goal. I know that they’ll try to game the system, but I want the government and IRS to counter those games and get their money.
In other words, I would be concerned that the rich would be able to cheat more than the common person in the system that you propose. Maybe you have fixes for that. I don’t know. I just learned about it, and so I haven’t really had a chance to think it through.
I’m always a fan of this kind of systems thinking.
Yea. It boggles the mind how they legislated away all sorts of “proportionately” for self defense. In my world, if a guy just shoves you onto the ground, with a context that’s quite clear that it would end there if you backed off, but you shoot them with a gun, that should be automatic charge of murder (or attempted murder).
Thanks for your response!
No, i’ve also changed the punishment. There is no threat of arrest. The Fed just stops lending to you. If your shareholders are okay with a reckless CEO who doesn’t care if they bankrupt the bank by costing them their ability to borrow from the FED, then fine. Your bank might even survive if its lucky enough and has enough cash reserves. Or you could secure a private line of credit. But either way you’re going to be making a lot less money because you can’t make use of as much without risking overnight bankruptcy on short term fluctuations (large reserves) or you get charged higher interest when you borrow to protect against short term fluctuations.
No threat of arrest, no threat of jail time. No guns. No armed law enforcement. The bank either complies or gets hit with a significant competitive disadvantage which either kills the bank or pisses off the share holders enough to fire the problem people at the top.
The point wasn’t to create a system with no enforcement mechanism, but to create one that was entirely carrots and no sticks. I don’t claim this is perfect – no one’s tried it before. But I do think that such a system is worth serious thought.
take care
Oh shit. I did miss that. That was my fault. Sorry!
I’m really sorry. I don’t know how I messed up that badly. Bad autopilot, bad.
It’s fine, EL. It’s fine. Don’t sweat it.
That made me think of this.