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Eight Steps Toward Equal Justice

protesters, including one holding a sign that says 'Black Lives Matter,' at a protest following the death of George Floyd.
Protest in Des Moines, Iowa, on May 29, 2020, following the killing of George Floyd. Photo by Phil Roeder.

The protests against police violence and racially unequal justice following the killing of George Floyd have been so large, widespread and representative of today’s America that this time, something might actually change.

But will it be a change that we want? One that makes a difference in the lives of people who, with good reason, now believe that the best interaction they can have with the law is no interaction at all? It is not enough to be against what we have now; we need to know what we want in its place.

It took a little time for ideas to emerge from the tide of anger and sorrow over Floyd’s callously brutal death. A lot of proposals call for more of what we have now: more body cameras. More investigation and discipline of police misconduct. More disclosure of the disciplinary records of officers (of which we have too little at present, and what we do get usually comes too late).

There are broad calls to “defund the police” or, in a few cases, to disband entire departments like the one in Minneapolis that formerly employed the four officers involved in Floyd’s death. Such calls are more an expression of frustrated rage than a constructive solution. We should defund police if we are spending too much money on police. However, there is little evidence that we have too many good police who are doing their jobs well. There is ample evidence that we have too many bad officers, and too many well-intentioned officers who lack the tools or the guidelines to do their jobs the way we want them done.

People and organizations respond to incentives. They perform best when they are individually accountable for their actions and when supervisors are accountable for those they supervise. And because any enterprise will hire some people who are not ready to succeed at their jobs, the best organizations effectively coach and supervise those who can be improved. They fire those who can’t.

Misdirected and inadequate incentives are at the root of many of our problems with law enforcement. We hand police officers a nightstick, some mace, a Taser and a gun, then put them on the street and tell them to use their best judgment about deploying those tools. We measure their “productivity” by citations written and “collars” made. Then we turn matters over to prosecutors whose performance is scored not by the quality of justice they render but by the convictions they obtain, preferably via expedient guilty pleas that spare the state the burden of proving its case.

Police get the message. They know they are used alternately as tax collectors and political punching bags. Many come to believe that only their fellow officers have their backs. Police officers seldom get speeding tickets. A flashed badge and the words “I’m on the job” almost invariably yield “professional courtesy” instead. It is perhaps a minor thing in itself, but it underlies the culture that police officers often feel obliged to look out for one another, good or bad.

We can fix a lot of this by applying better management. We can redirect incentives so they don’t lead officers to stereotype and target poor and minority individuals. We can promote accountability. We can push people who are not cut out to be members of law enforcement into other lines of work.

Here is my list of eight steps toward equal justice. Some are easier to take than others, and “toward equal” won’t necessarily translate into “equal,” and certainly not “perfect.” Management is the art of doing the best you can right now, and trying to do better later. We need to start getting better now.

1. End law enforcement profit from forfeitures. Programs in which police budgets benefit from seized property turn police into bounty hunters and racial minorities into targets. End these arrangements. Anything of value that officers seize should go into state or federal general funds, to be appropriated in the ordinary way by elected legislators. Police should not be in the business of funding themselves; it creates a pernicious conflict of interest.

2. Direct fines to state general funds. Similar logic applies. The reliance of many municipalities on police-generated revenue weakens and corrupts oversight of the policing function. When New York City officers wanted to send a message to Mayor Bill de Blasio during the Christmas holidays in 2014, they stopped writing tickets and making arrests. Traffic citations fell by 94%. From small-town speed traps to the country’s leading metropolis, reliance on police-generated revenue gives law enforcement license and leverage to misbehave.

3. Specify when physical force is appropriate. If you get in my way on the sidewalk, I don’t shove you aside. I say “excuse me” or walk around you. Yet during recent demonstrations, police pushed and shoved protesters. Some used nightsticks as a form of on-the-spot corporal punishment for curfew violations. Guidelines should be clear: The only time an officer has the right to put hands on a civilian, let alone use a weapon of any sort, is when making an arrest, executing a warrant, interrupting a crime in progress for which an arrest will be made, or effecting a rescue. Period. Police need to be directed that their weapons are strictly for defense, not offense.

4. Raise the standard for stops. Congress should overrule Terry v. Ohio, the 1968 Supreme Court case that established “reasonable suspicion” as sufficient basis to stop and externally frisk someone. This led to the deluge of stops that almost exclusively targeted minorities in New York City under then-Mayor Michael Bloomberg. It allows officers across the country to detain African American men under the ubiquitous excuse “you fit the description.” Not good enough. If an officer has probable cause to tie an individual to a crime, detention is warranted. Otherwise everyone should be free to go on their way, engaging with or ignoring officers as they wish.

5. Perfect and deploy facial recognition and other automated technologies. Problem: Innocent people are routinely stopped for driving, or walking, or otherwise living while black. Solution: Know who you are looking for, and stop only those people – regardless of race, of course. A “broken tail light” should not be a reason for a traffic stop at all; use cameras and automated enforcement if alerting drivers is a priority. On the other hand, a driver with a suspended license or outstanding arrest warrant should not get a free pass. We still want police to pull over drivers who are reckless, erratic or dangerously aggressive, but we don’t want them stopping people who are operating safely merely to spot-check whether license, registration and insurance are in order. This is an area where racial bias can often come into play. Privacy advocates oppose law enforcement use of facial recognition technology, but they do so at the expense of unreliable police suspicions and witness identifications. Vendors are leery too. IBM is pulling back from this area, and Amazon this week paused police use of its technology so it can improve questionable results in identifying people of color. So this technology may not be ready for prime time, but we should use it when it is.

6. Put supervisors on the scene, remotely. Deployment of 5G technology could be the game-changer here. Rather than relying on evidence from dashboard and body cameras after the fact, agencies should use these tools to livestream information directly to supervisors in a control room. They can intervene in the moment if something is going wrong. If major league baseball can review umpiring in a dozen simultaneous games around the country from a replay room in New York, police supervisors in a command center can monitor every active patrol officer who is making a traffic stop or arrest, or arriving at a reported crime scene.

An underappreciated dimension of the George Floyd tragedy is that beyond taking his name, city police should not have been involved in arresting him at all. A store clerk identified Floyd as having passed a counterfeit $20 bill. (This is something that could happen, innocently, to anyone. I have about a dozen bills in my wallet as I write this, and I certainly lack the skill to spot a decent forgery.) The police should have told the clerk that the U.S. Secret Service handles counterfeiting. Remote supervisors could have directed those officers to dispose of the matter, let Floyd go and be on their way – and watch to make sure they did it.

7. Law enforcement jobs should be subject to termination at will. This is the arrangement under which most Americans work: Your boss can fire you for any reason (except those prohibited by law, such as race or religion), or no reason at all, at any time. Police and their unions will hate this. This makes it a very difficult change to pass, because Democrats love unions and Republicans love police. It will require legislatively overriding or superseding existing contracts. Police unions should, as a matter of public policy, be limited to negotiating pay, benefits, and certain working conditions such as hours and staffing levels. They should have no role in discipline or personnel decisions. “Due process” in employment for errant officers is an oxymoron for someone to whom society entrusts the power to deploy lethal weapons. They will find their due process in court, should they be accused of criminal misuse of force, just like the rest of society. And a capable officer who is let go will find another job elsewhere.

Former officer Derek Chauvin, who put his knee on George Floyd’s neck and killed him, racked up 18 civilian complaints in a 19-year career. Yet nobody is in trouble for keeping him on the job, because firing a police officer is so difficult. Everyone up the line from Chauvin who was aware of those complaints, as well as the officer himself, played a role in Floyd’s death. But only Chauvin and the junior officers who were on the scene will pay a price.

8. End the death penalty, everywhere in America, right now. There were more than 2,600 people on death row in this country at the end of 2019, according to the Death Penalty Information Center. Of this group, 42% are black – far more than their proportion in the population. President Trump and the governors of the 30 states that still have prisoners on death row could commute all of their sentences to life imprisonment. They should do it tomorrow, if today is not convenient.

African Americans are statistically more likely to be wrongfully convicted of murder. They are also more likely to be sentenced to death if the murder victim was white. Twenty-one states no longer have capital punishment. When Washington’s Supreme Court struck down that state’s law, it specifically cited its racial disparity in its application.

A sentence of capital punishment is a form of torture to the defendant while on death row. Its execution is a form of torture for the defendant’s family. If we achieve nothing else in the wake of George Floyd’s death, may we ensure that no African American family ever has to watch an unarmed child, spouse or parent be deliberately put to death at the hands of an officer of the state.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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