By Dr. Robert McClure
June 16, 2020
Our history over the past 240-plus years has been marked by inflection points — crossroads at which we collectively take a sharp turn in a different direction.
The Emancipation Proclamation. Pearl Harbor. As a more recent example, around mid-2001 then-Secretary of Defense Donald Rumsfeld was on cable news shows discussing his plans for reducing the overall size of the military in favor of a leaner fighting force able to nimbly address smaller conflicts.
Then Sept. 11, 2001 hit. An inflection point radically altering the course of our geopolitical and military path for decades.
In leading an organization for 15 years that has been engaged in the push for justice reform, it’s my belief that we have hit an inflection point in our approach to policing and criminal justice in the United States.
As protests sweep across states, and the use of technology shines a light on cases of both abuse by and harassment of law enforcement, I want this to be a catalyst for concrete policy solutions — solutions creating a better environment for communities, for marginalized socio-economic groups, and for law enforcement.
When we strip away all of the interrelated pieces and dig down, I see two challenges that need to be rooted out and addressed in order to realize valuable change — one from the “right,” the other from the “left.”
On the left, there is a cottage industry of outrage that’s evolved over the past 20 years consisting of social justice profiteers and the mobs who do their bidding.
On the right, it is the issue of the overwhelming influence of police unions and their respective trade associations, which stifle efforts at real reform.
As a philosophical conservative, I can only work on the beam in my own eye rather than call out the speck in another’s.
It’s not forgotten that the largest obstacle to passing the Federal First Step Act (the most consequential justice reform legislation in a generation) was the National Sheriffs’ Association. I can speak from experience that substantive reform at the state and local levels is opposed most often (and consistently) by law enforcement unions and trade associations who support the status quo.
I believe the status quo is untenable. Recent events are only the latest evidence.
Consequently, I would like to proffer five tenants for justice reform, with which I am certain my friends who support law enforcement will take issue.
Reform Qualified Immunity
Prior to the killing of George Floyd, reforming qualified immunity had only been discussed in libertarian circles.
And while it does not apply to the George Floyd case because of the criminal charges, qualified immunity serves as a foundational challenge to law enforcement addressing police abuse and brutality.
There is, however, a practical (and market-centered) solution; one that we already see in the healthcare arena. By simply requiring law enforcement unions to carry liability/malpractice insurance and mandating that premiums be paid out of union dues, the incentive shifts to the agencies to deal with specific “bad apples” because of the risk of premium increases.
End Civil Forfeiture Once and for All
Across the country, states have passed solid reforms to civil asset forfeiture laws. In 2017, Florida curbed this affront to constitutional due process. However, law enforcement agencies can skirt the will of state policymakers via the “equitable sharing” loophole, which permits a local agency to “transfer” a forfeiture to the feds in return for an 80-20 split of the proceeds. This loophole can and should be closed by state lawmakers if the feds refuse to end the program.
Improve Police Accountability
Society delegates a broad level of authority to law enforcement — they have a monopoly on the ability to use force to protect the public. There must be an understanding that with authority comes responsibility.
And while broad national data trends do suggest that police abuse and brutality are extremely limited occurrences, piles of anecdotal evidence over years should not be cast aside. We can do better. Improvements in accountability can be achieved by abolishing “no knock warrants” and ensuring that body cameras are never turned off.
Reform Drug Sentencing Laws
One area of the justice system containing mountains of data to support reform is in drug sentencing laws for non-violent first-time offenders. State after state after state (Texas, Georgia, Oklahoma, New York) have shown that you can stop treating addicts as traffickers and you’ll better protect the public, save tax dollars, and achieve better outcomes in marginalized communities.
These are goals of conservatives and liberals, and the policy approach is straightforward. A limited, narrowly-tailored safety-valve allowing judges to depart from a mandatory minimum, if a defendant meets a set of criteria, would restore some sanity to the sentencing process and shift resources to treatment, drug courts, mental health counseling, and other necessary measures.
Externalize Internal Affairs
Regardless of the reality of maintaining public safety in a nation of 330 million people, there exists a perception that law enforcement protects their own.
That perception does not help build bonds between public safety professionals and the communities they serve. The fact that those charged with “policing the police” are typically in a unit contained within the department perpetuates this.
Pursuing a new model and reforming internal affairs (IA) units can offer the community a needed voice.
Whether through a separate and external IA department or via a citizen panel (adequately trained), shining a public light and engaging the community in the process of public safety can only serve to forge a better future.
Understand, these reforms will help the police as well by providing good cops, the vast majority, more protection and respect via transparency and credibility. Whether we wish to admit it openly or stick our heads in the sand, we find ourselves at an inflection point. I have consistently and unceasingly championed the cause of liberty and the ideals of the motto e pluribus unum — out of many, one.
The Constitution and Bill of Rights have endured invasions, civil war, a depression, and even the disco age. It is my hope that with a modicum of humility from all we can acknowledge our flaws as fallen humans, cling to hope in the collective belief in American ideals, and continue the greatest governing experiment in the history of mankind.