Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
These are the crucial policy debates every U.S. law enforcement agency needs to be having, right now.
On Wednesday, a Staten Island grand jury decided not to indict New York Police Department officer Daniel Pantaleo for the July 17 killing of Eric Garner, the second no-indictment decision in a major police-involved homicide in just 10 days. On November 24, a grand jury in St. Louis declined to indict Ferguson Police Department officer Darren Wilson for the shooting death of Michael Brown, prompting nationwide protests. Earlier, in September, still another grand jury did not indict police officers for shooting and killing John Crawford III in a suburban Ohio Walmart.
Garner's death was captured on video by a bystander. That video shows Garner protesting that he could not breathe as Pantaleo, one of the officers restraining him, held in a chokehold, a practice that is specifically banned by the NYPD's own policies. In the wake of the decision not to indict Pantaleo, critics are asking whether even plain video evidence is enough to secure wrongful-death charges against a police officer.
Several common factors are at play in recent decisions that have undermined public confidence in the justice system, says John Roman, senior fellow in the Urban Institute's Justice Policy Center. But federal and local governments are not powerless to change the status quo. Below, Roman outlines for us several key steps, from big changes in data collection to overhauling the grand jury process, that while difficult, ought to be front and center in the policy debate at every level going forward.
Bring Back the FBI Data on Police-Involved Shootings
The FBI maintains data on homicides as part of the Uniform Crime Reporting program. It's somewhere between a recommendation and a requirement that the nation's 17,000 law-enforcement agencies report additional data on homicides to the Supplementary Homicide Report (SHR). Up until the early part of the last decade, Roman says, police-involved shootings were included in those data. They no longer are.
A variable in the data-collection process that labeled a homicide with different values—as a suspect killed while committing a crime by a police officer, for example—was removed in the early 2000s. Ever since police-involved homicides were stripped from the report, reliable information on police shootings has been hard to come by.
"We’ve had a lot of high-profile, police-involved homicides, and we can say very little about what we know about them. We can't say basic things," Roman says. "We can't say where they happen. We can't say how often they happen. We can't say if there is any racial disparity in how they happen."
It's a problem that no one knows how many Americans are killed by police each year, because people turn to diverse and potentially unreliable sources for this information. "Without knowing any of those things" about these homicides, Roman says, "we have the debate that we're having, which is this ideologically based shouting match that's completely unhelpful."
Require More Detailed Local Data on Police Shootings
While it seems that the deaths of Garner, Brown, Crawford, and many other unarmed black men contribute to a clear pattern, in fact we know very little about the circumstances of most police-involved shootings.
What data we do have on these deaths excludes important information and context that would help to explain what's happening from a national perspective. Fairly standard reporting requirements might tell us the age, race, and gender of a victim—but they wouldn't tell us that Garner, for example, had had multiple run-ins with the officer who put him in a lethal chokehold.
"They had a bad relationship. They were not strangers," Roman says. "We want to know things like that, because that builds up a pattern of data that lets us think about changing police policy." Demonstrating that an officer (or a department) has had continued bad interactions with an individual (or a neighborhood) could help to curb unnecessary violence.
The available SHR data on police shootings don't include another important bit of contextual data. "The one real limitation with SHR that we came across with Trayvon Martin and that case is we didn't know where the event occurred. We didn't know if it happened inside a home, or inside a shop, or out on the street," Roman says. Given the publicity of that case, many people will remember that Martin was shot and killed in the street. But for hundreds of shootings, this knowledge may be lost.
"Knowing that is really important to understand how there's differences in interactions in different places," Roman says. "If we want to think about racial disparities, for instance, we'd really like to know what percentage of homicides happen in a home versus on a street. We'd want to know the same thing about police-involved homicides."
These are the easiest fixes that law-enforcement agencies could adopt to improve our understanding of when, where, and how these deaths happen. "These are not hard data to get," Roman adds. "This is not a heavy lift for local law enforcement."
Take Prosecutors Off Cases That Involve Police Shootings
A police officer is almost always a key witness in any prosecution. So if a prosecutor starts indicting cops, cops will stop testifying for the prosecutor, which is bad not just for the prosecutor but for the police, the community, and the entire criminal justice system. Not indicting an officer in an egregious case, on the other hand, diminishes the legitimacy of the justice system, which is also bad for the police, the community, and the entire criminal justice system.
Therefore prosecutors face a standing conflict of interest in homicide cases that involve police. "The prosecutor in a police-involved shooting is in an absolutely impossible situation," Roman says.
One answer might be to take these cases out of the hands of local authorities. A U.S. Attorney's office covers every jurisdiction in the U.S. In the case of an officer-involved shooting, the relevant U.S. Attorney could make a recommendation about how to proceed: prosecute the officer or officers involved, set up a grand jury to investigate, or decline to prosecute.
"Then you'd have an independent voice making a recommendation," Roman says. "It would give local law enforcement and local prosecutors the ability to make much better decisions."
Abandon the Grand Jury Process for Good
The New Yorker's Jeffrey Toobin and The New Republic's Noam Scheiber are among the critics who pilloried St. Louis County prosecutor Bob McCulloch for his failure to secure an indictment against Wilson. Grand juries so overwhelmingly tender indictments that the Wilson grand jury was suspect just by the fact of its decision. The prosecutor had two legitimate options, and instead chose a third, Scheiber writes:
The first would have been simply to decline to indict Wilson for the reasons McCulloch’s defenders posit—that the law would have made it very difficult to secure a conviction. The second legitimate option would have been to obtain an indictment against Wilson from the grand jury, which McCulloch almost certainly could have done had he sought one. But McCulloch chose a third option—using the grand jury process to establish Wilson’s innocence—which is deeply unfair.
Roman concurs: A grand jury hears the argument that the prosecutor wants the grand jury to hear. "It creates the patina of democracy where there is none," he says. "It's a farce."
The alternative is simple and, indeed, bedrock democratic stuff: When prosecutors decide to prosecute, the question should be put to a jury of the defendant's peers in a trial. In a case in which the prosecutor has a straightforward incentive to side with one of the parties—and that's every officer-involved shooting, since prosecutors rely on police to do their jobs—the case should go automatically to criminal trial. (Or however an independent U.S. Attorney or special prosecutor recommends.)
"A prosecutor and a grand jury is like a parent talking to their child about someone outside the family," Roman says. "What's the child going to do? They're going to do whatever the parents tell them to do."
Put Cameras on Police, and Researchers on Cameras
President Obama has asked Congress for $75 million to fund 50,000 police body cameras. Something had to be done after the events of Ferguson, and this technology might have clarified what happened between Brown and Wilson. Yet as critics everywhere are noting bitterly now, video evidence of Garner dying in an illegal police chokehold didn't lead to a trial.
Garner case shows limits of body cameras, but without a video it's possible this story would have never made it off page 20 of the NYDN.— George Zornick (@gzornick) December 3, 2014
Whether police outfitted with body cameras will lead to fewer lethal interactions is an open question, but the research isn't being done to test both the unintended consequences and the unintended upsides, Roman says. Who can do this research? "Somebody who's objective, somebody who's not part of government, somebody who's not part of law enforcement, who doesn't have an ideology about it, who just transparently, objectively, empirically evaluates the evidence on whether it leads to better outcomes."
Does that mean that President Obama, in the meantime, rushed to judgment by asking for body cameras now? "Given 17,000 law-enforcement agencies, 50,000 cameras is a drop in the bucket," Roman says. "But to put them out there and then not determine how they are affecting police behavior, defendant behavior, and just general citizens' behavior, I think that would be a mistake."
Reaffirm a Police Duty To Retreat
Roman notes that the U.S. has shifted as a country on the obligations that citizens are under—legally, and even spiritually—when we are faced with dangerous situations. The 29 states that have embraced the so-called castle doctrine, for example, have expanded the sphere in which a person has the right to protect his life and property with overwhelming force to include not just his home but his business and even his car. Stand-your-grand laws have pressed the matter further, by eliminating a requirement that people who have the option to escape a dangerous situation must try to flee.
The recent high-profile police-involved deaths, in particular the deaths of Garner, Crawford, and 12-year-old Tamir Rice, represent a failure by officers to attempt to de-escalate a situation first. In those cases, officers resorted immediately to martial force, "instead of taking a step back and trying to diffuse the situation," Roman says.
"At the end of the day, that's the thing that the community is upset about. There was no attempt at de-escalation in any of these cases," Roman says. He says that the police departments must adopt a "duty to retreat" when doing so could prevent the loss of life. "Whether given today's laws the officers involved acted appropriately or not, the community expects them to de-escalate first."
Ask Law Enforcement To Pay for Their Stuff
Materiel from the controversial 1033 program—whereby surplus military hardware is funneled from the Pentagon to local law-enforcement agencies—has provided a stark backdrop to protests in Ferguson. Police outfitted in SWAT gear aboard an armored LENCO BearCat military vehicle met protesters in the streets, potentially exacerbating a crisis situation and producing haunting photos.
The 1033 program turned into a national lightning rod over the course of the summer, leading the White House to announce this month that it will tighten standards on the provision of military equipment to local law-enforcement agencies. But a lesser known program under the U.S. Department of Homeland Security provides funds to law-enforcement agencies to buy militarized gear themselves, Roman says, either through the Pentagon or on the open market.
Some of these buys are justified. More of them would be, Roman says, if police departments were required to match some part of the funds they receive.
"If I come to you, and I say, 'Would you like a tank?' you're going to say, 'Sure!'" he says. "If I ask you if you'd like a tank that costs a million dollars, but you need to pay 3 percent for it, so you have to come up with $30,000, you're probably going to ask yourself if you really need a tank."
Rethink the Entire Premise of American Government?
Roman isn't willing to go as far as some: He doesn't necessarily agree with Vox's Matthew Yglesias, for example, that an armed constabulary (and the armed population at large) is the root of America's problem with police killings. The proliferation of guns plays a critical role. So does the nation's history of white supremacy. And so do other deep-seated, historical, structural problems.
As for a single cause for widespread police-shootings in the U.S.—one that its government might be willing to address, anyway—Roman cites the fundamental lack of central law-enforcement oversight. Law-enforcement agencies are simply resistant to instruction that would help local law enforcement police better.
"We have fought from the beginning of our nation against the idea of federal policing. I think we are witnessing some of the results of a failure to have any national coordination of policing agencies," Roman says. "I'm not advocating for a nationalized police force, but I am advocating for some accountability."