June 2, 2023
Earlier this week, Hunter
reported on the discovery that there was an audio recording of Donald Trump in
a 2021 meeting in which he talked about holding on to a national security
document containing details of a potential military attack on Iran. That
recording made it clear that Trump knew he had retained information classified
at the highest level, and that he had not declassified this material before
leaving the White House.
This recording, which was
reportedly played for the grand jury hearing evidence on the case being
investigated by special counsel Jack Smith, seems more than adequate to justify
an indictment. However, it turns out to be just the tip of the iceberg.
CNN is reporting that this
document was not among those recovered by the FBI when they searched a storage
room and Trump’s office at Mar-a-Lago. In fact, Trump’s attorney’s can’t find
the document anywhere.
The missing document
reportedly contains handwritten pages from Gen. Mark Milley describing one
approach to a possible attack on Iran. Earlier reports indicated that Trump
also had documents related to Iran’s nuclear program and defenses, but it’s not
clear if this is all part of the same document. The same missing document.
Smith’s team has reportedly
notified Trump’s attorneys that they want the document. They want any notes
related to the document. They want any other material referencing the document.
They want any copies made of the document. But mostly, they need the original
document that Trump talked about on the recording.
Since that 2021 meeting
took place at Trump’s golf course in Bedminster, New Jersey, that would seem to
be one logical place to look for the document. So far, the FBI has not conducted
any search at this location, or at hundreds of other properties owned by Trump.
Shortly before the FBI
searched Mar-a-Lago, members of Trump’s staff, along with workers at that
location, moved some boxes out of the storage facility. It’s not known if those
boxes were recovered by the FBI or if they were moved to other locations.
There are reports that
Trump has admitted showing classified information to visitors at Mar-a-Lago.
Visitors to that location include representatives of Saudi Arabia, Iran’s
biggest adversary in the Middle East. Saudi Arabia also founded a LIV Golf
event held at the Bedminster course.
In recent weeks, the
special counsel’s office has complained to a federal judge that they couldn’t
be sure Trump had returned all the classified information. Now they’re sure he
didn’t.
American police are basically untouchable. How did it get this bad?
June 2, 2023
The terror of police power
is a recurring fact of American life, particularly in this country’s poorest
communities and in communities of color. The power of officers comes not only
from the strength of arms, but also from a legal system that is swift to
protect its enforcers, yet slow to hold them to account. Where did this virtual
immunity from prosecution come from? Has it always been this way? And if not,
how has police power and impunity changed through the ages? Historian Joanna
Schwartz joins The Chris Hedges report to discuss her new book, Shielded: How
the Police Became Untouchable.
Joanna Schwartz is a
professor of law at UCLA, where she teaches civil procedure and courses on
police accountability and public interest lawyering.
Transcript
The following is a rushed
transcript and may contain errors. A proofread version will be made available
as soon as possible.
Chris Hedges:
The police in the United
States through a series of Supreme Court decisions as well as policies enacted
by state and city governments have become largely immune from prosecution even
when they commit serious felonies such as murder. Police officers are
criminally charged in less than 2% of fatal shootings and convicted in fewer
than one third of those cases. When officers injure but do not kill, they are
even less likely to be prosecuted. Police in America are virtually omnipotent,
prosecuted in a handful of high profile cases that receive national attention,
but otherwise free to engage in lawless behavior, especially in poor
communities.
University of California
law professor Joanna Schwartz, in her book, Shielded: How The Police Became
Untouchable, details the myriad of ways the legal system has stripped the
citizens of protections from police abuse. The wholesale blocking of civil rights
litigation means the police are rarely held accountable for the crimes they
commit. Blunting all efforts to enact meaningful police oversight, legal
accountability and reform. Joining me to discuss her book, our failed justice
system in police forces that function especially in poor communities as rogue
militias, is Professor Joanna Schwartz. Let’s begin as you do in the book with
the legal antecedents, especially Section 1983 became law in 1871. What was
Section 1983? Why was it made law and how did it protect the citizenry and why
and how has it been rolled back?
Joanna Schwartz:
Section 1983 was first
passed by Congress in 1871 following the Civil War during reconstruction when
newly freed slaves, former slaves, black Americans were being tortured and killed
by the newly created Ku Klux Klan and other white supremacist groups and local
law enforcement and government was doing nothing to intervene if they were not
themselves participating in the violence. And Congress looking at this
evidence, decided that there needed to be a federal law allowing people to sue
for violations of their civil constitutional rights in order to give those
rights actual meaning. And so they enacted what is now known as Section 1983
for its place in the US code, but was at the time referred to as, the Ku Klux
Klan Act. Very soon after Section 1983 became law, decisions by the Supreme
Court and by Congress made Section 1983 and other reconstruction era acts lose
much of their power.
And it was really not until
1961 when the Supreme Court first recognized that Section 1983 could be used to
sue government officials, police officers in the case, which is called Monroe
versus Pape, for the violations of their constitutional rights. So after 90
years in obscurity and disuse, Section 1983 was recognized by the Supreme Court
as being this tool that could be used to sue for constitutional violations in
1961. But then after a sort of momentary heyday with the power and potential of
1983, the statute has lost progressively its power and it’s lost its power
through Supreme Court decisions primarily that have cut away at the ability to
sue in a variety of different ways that I outlined in the book that begin at
the very initial stage of trying to find a lawyer through pleading a complaint
with the court through proving a constitutional violation, qualified immunity,
holding local governments responsible and beyond.
Chris Hedges:
So this 1961 decision
opened as you write in the book, a kind of flood of lawsuits. I remember
talking with the civil rights attorney, Lynne Stewart, and she said this was a
kind of golden era in the judiciary where citizens really had the capacity to
hold government agencies including police accountable, and that it was
essentially that surge in suits that produced the backlash. And including in
that backlash as you write in the book or accompanying that backlash was a kind
of mythology. Can you explain how that worked?
Joanna Schwartz:
Absolutely, and I should
say that the evidence definitely shows that the number of claims that were
filed under Section 1983 increased dramatically after 1961 as well, you would
expect because it was the first time the Supreme Court said you could sue under
this statute. But the claims that were alleged, the story that was told about the
effect of these claims really does take mythological proportions. The story
goes that courthouses were overflowing or threatened to be overflowing with
frivolous lawsuits, that these lawsuits were bankrupting or would bankrupt
officers who were simply doing their job in good faith and that all of these
lawsuits would discourage people from taking on the job of a police officer or
from aggressively enforcing their duties as a police officer and without a
robust police force that we as a society would descend into chaos. And truly
you can see versions of that story or pieces of that story told by courts, by
journalists and by politicians in the years after Monroe versus Pape was
decided.
Chris Hedges:
One of the effects was that
states passed laws, cities passed laws where they obliged local governments to
pay damage awards and lawsuits against police officers. Can you explain that
process and what effect it had on police misconduct and what happened when line
items and the budgets for damages exceeded the amount set aside for damages?
Joanna Schwartz:
So in the seventies and
eighties, particularly, I should say sixties, seventies and early eighties,
states and localities across the country enacted what are called
indemnification statutes. And indemnification is an idea that we see in private
industry all of the time. If there’s a truck driver from a company, the truck
hits you, you would want to sue not the driver themselves, but the company that
hired them. The idea being that the driver probably isn’t going to have the
resources to pay that settlement or judgment, and it’s really the work of the
truck owner or the truck company that should be held responsible. This is the
same idea that states and local governments had when they created these
indemnification statutes which provide that when an officer is sued, they will
be given a lawyer free of charge and that settlements and judgments against
them will be paid by the local government or by their insurer instead of by the
officer themselves.
And these indemnification
provisions vary. There’s usually some exceptions to the kinds of things that
the city agrees to cover and the coverage is limited to conduct taken in the
course and scope of employment. Although when I have researched settlements and
judgements and police misconduct suits across the country, what I found was,
that virtually all of the money comes from the local governments and from
insurers. I found in 81 jurisdictions, a six-year period, 99.98% of those
dollars came from the local governments and their insurers. And notably it does
not come from the police department’s funds. I did a follow-up study where I
looked to see what financial impact these settlements and judgements had on the
police departments. And what I found was often the money may come technically
from the police department’s budget, but that money was already budgeted to the
police department from the central budgeting process.
And when departments went
over budget, when they spent more money than expected on lawsuits, the extra
money came not from the police department. They weren’t required to cut back on
overtime or equipment or anything like that. Instead, the money was taken from
other parts of the central budget. And what I found when I looked into how this
practice worked in Chicago was that the excess money ends up coming from
portions of the budget that were earmarked to go to those least politically
powerful people within the community. There was a city attorney for the city of
Chicago who said when payouts went up in lawsuits, led paint testing went down.
And so the very communities that are disproportionately the subjects of police
surveillance, searches and violence are also the ones who have their budgets
and the parts of the budgets earmarked toward them stripped away to satisfy
settlements and judgements in cases alleging police misconduct against people
within their very communities.
Chris Hedges:
And in cases like Chicago
where you had Burge and that torture center, that sort of clandestine torture
center, we’re talking about millions of dollars.
Joanna Schwartz:
Absolutely. I mean, in the
last 10 years, I think Chicago paid half a billion dollars in settlements and
judgements and they pay an extra many millions of dollars toward private
attorneys that they use to defend their lawyers or excuse me, their officers in
some of these cases. And as I describe in the book, there are many instances of
cases where the Chicago police officers had extreme egregious allegations
against them. Many millions of dollars were spent defending these cases only to
lose at trial and have to spend many millions of dollars more. And the police
department is playing with house money in these situations. They suffer no
consequences of spending extreme amounts of money to fight these cases instead
of what would be better for the community as a whole, which would be to resolve
these cases, to satisfy the demands of people who have righteous claims and
then to work to prevent these things from happening again in the future.
Chris Hedges:
Can you talk about the role
of prosecutors and internal affairs divisions and both these two institutions
you write in the book really serve as a way to protect police from legal
accountability?
Joanna Schwartz:
Yeah, in the introduction I
talk about the fact that if you are trying to seek justice following a right’s
violation, there are really three paths. And I focus in the book on civil lawsuits,
lawsuits seeking money damages or other kinds of forward-looking relief. And in
part I focus on that because the other two paths which are criminal prosecution
and internal affairs, investigations and discipline are so dysfunctional. As
you mentioned previously, officers are very rarely criminally prosecuted, rare
when they kill people, but far rarer when they use force or other kinds of
misconduct that don’t result in death. And internal affairs investigations are
also extremely difficult to have brought and successful. When the Department of
Justice has looked at police department internal affairs investigations across
the country, it’s found that police investigators don’t use the basic crime
fighting tools that they would use if they were trying to solve criminal cases.
They don’t interrogate
officers, who offer virtually verbatim statements to their fellow officers
about what’s happened. They don’t interview all of the witnesses to the event.
And for these and other reasons, officers are rarely disciplined or terminated.
In addition, law enforcement unions have worked with passion to create law
enforcement officers bills of rights that create a great deal of protection for
those officers in the disciplinary process and the ability to appeal and
arbitrate decisions that are against those officers. So even in the rare
instances in which officers are disciplined or terminated, those decisions are
often overruled or overturned through that arbitration process.
Chris Hedges:
Can you explain qualified
immunity and how it works?
Joanna Schwartz:
Qualified immunity, which
has been in the news a great deal, although it’s a term that remains elusive to
many, perhaps because it is so nonsensical, it is a defense that was created by
the Supreme Court in 1967. So six years after Monroe versus Pape was decided.
And at the time it was described as a good faith defense for officers who had
violated the Constitution but who had acted in good faith, thought that they
were following the law. That standard for qualified immunity shifted
dramatically in 1982 when the Supreme Court said, forget about officer’s
subjective intent that will take too long to resolve.
The question is whether
officers violated clearly established law. And the Supreme Court’s descriptions
and definitions of clearly established law have gotten more and more
constrained over the years fueled by these myths about the dangers of making it
too easy to sue so that today officers are protected by qualified immunity from
damages, awards in civil cases, unless there is a prior court decision holding
unconstitutional, nearly identical facts, it’s not enough to find a prior case
that offers a general principle like that an officer can’t use force against a
suspect who is surrendered. You have to find a prior case in which an officer
uses a similar type of force against a person who has surrendered and
demonstrated that they’ve surrendered in a factually similar way.
Chris Hedges:
Public attorneys are
provided for people convicted of a serious crime who can’t afford one, but
they’re not provided for those whose constitutional rights have been violated
by a police officer. How has this barrier benefited police?
Joanna Schwartz:
Well, it’s very difficult
to bring a civil rights lawsuit without a lawyer. People do it and do it
regularly, but when you think about trying to overcome a defense like qualified
immunity, it’d be very hard to do that without the assistance of a lawyer. And
the Supreme Court has made it more difficult for people whose rights have been
violated to find lawyers. The Supreme Court has done this through a series of
decisions that limit the ability of lawyers to get paid in these cases.
Congress in 1976 created a statute which is called Section 1988, which gives
prevailing plaintiffs the ability to get their reasonable attorney’s fees. And
Congress wanted to enact the statute to make sure that there were enough
financial incentives for lawyers to bring cases alleging constitutional
violations, even in cases that didn’t have enormous damages awards from which a
plaintiff’s attorney could take their cut.
But the Supreme Court has
interpreted Section 1988 to allow that when settling a case, a defendant can
offer and a plaintiff can agree to waive that entitlement to attorney’s fees
and most cases that are successful settle, which ends up meaning that the sort
of contingency fee relationship where lawyers are only expecting to get a
portion of their client’s recovery is how lawyers are assessing the risks and
benefits of taking these kinds of cases. And so cases involving people who have
been killed by police, high profile cases that are expected to garner a
significant amount in terms of a settlement are cases that are going to be…
They’re people who are going to be able to find representation, but cases
involving constitutional violations that don’t result in death or other high
damages kinds of harms, even if they’re serious constitutional violations and
people who are not going to be sympathetic to a judge or jury for any number of
reasons are going to have a really difficult time finding lawyers.
And the problem is not only
that those clients will not be able to find lawyers, but my research and
interviews with lawyers suggests that the challenges of bringing these cases
and the ways in which the Supreme Court has interpreted the ability of lawyers
to get paid in these cases has led to lawyers deciding not to bring any civil
rights cases at all and focus instead on criminal defense cases or personal
injury cases, medical malpractice cases where they have an easier time making a
living.
Chris Hedges:
Well, you write that the
lawyers are reluctant to take cases and these are your words, unless the
victims are, likable, credible, and articulate, and that criteria often cancels
out the marginalized. Can you talk about that?
Joanna Schwartz:
Absolutely. So those quotes
are from lawyers who are thinking about what clients they want to represent and
they’re thinking, looking forward to how a judge who has tremendous discretion
over these cases or ultimately a jury if the case gets to trial, is going to
think about this client and what they deserve. And as a practical reality that
may, it does for some lawyers, cut out anyone who has ever been involved in the
criminal justice system before. This is not true for every jury across the
country, but particularly in more conservative parts of the country.
Lawyers are concerned that
jurors are not going to be sympathetic to a person who’s previously spent time
in jail or prison. This may cut out people who have mental health challenges,
people who are LGBTQ because of just the biases of jurors, black jurors,
indigenous jurors, Latino jurors, excuse me, black plaintiffs, indigenous plaintiffs,
Latino plaintiffs, homeless plaintiffs. These are all categories of people who
are disproportionately the subject of police violence but may also be
considered less articulate, sympathetic, et cetera to a jury. And so may have
an especially difficult time finding a lawyer.
Chris Hedges:
Terry versus Ohio Supreme
Court decision 1968, the court rejects the notion that stops and frisks are
wholly outside the protections of the Fourth Amendment, which was ratified to
ensure that Congress would not send government officials inside people’s homes
without a warrant or probable cause. Then Chief Justice Earl Warren rejected
the notion that police needed probable cause. This case was a significant blow
as you write in the book to the Fourth Amendment and the protection against
intrusive police behavior, Justice William O. Douglas, who was the loan dissent
in Terry wrote, “There have been powerful hydraulic pressures throughout our
history that bear heavily on the court to water down constitutional guarantees
and give the police the upper hand. That hydraulic pressure has probably never
been greater than it is today. Yet if the individual is no longer to be
sovereign, if the police can pick him up whenever they do not like the cut of
his jib, if they can seize and search him in their discretion, we enter a new
regime.” Talk about that ruling and what it’s meant.
Joanna Schwartz:
So Terry versus Ohio was a
case that assessed the power of police to stop and frisk. And that was
something that even back at that time was happening all of the time. It’s
certainly in the news today, but it was happening all of the time on the
streets of our country. And there was an open debate about what police’s
authority was to stop and frisk. It was the view of law enforcement officers
that stopping and frisking was not covered, was not protected at all by the
Fourth Amendment. The Fourth Amendment protects against unreasonable searches
and seizures to the interpretation of law enforcement. This did not fall into
either of those categories and to their opponents, to civil rights advocates
like the NAACP Legal Defense Fund, stops and frisks should be treated as wholly
within the Fourth Amendment, such that you, an officer would need probable
cause before doing a stop or frisk.
So Justice Warren split the
baby in some ways. He said that this kind of stop and frisk was covered by the
Fourth Amendment, but it did not require the full protections of the Fourth
Amendment. It did not require probable cause. Instead, it was only a reasonable
suspicion that officers needed to have before they stopped and frisked people.
And part of this justification, as Justice Douglass suggests in his dissent was
related to the fact that the late sixties, it was a time of great upheaval,
protests, assassinations, and the like. And so the argument was that police
needed this kind of discretion and power in order to keep us all safe.
But the way in which Terry
versus Ohio and the reasonable suspicion standard has come to be interpreted
and understood, officers have virtually unlimited power to stop and frisk
anyone under almost any circumstances. The police can have no reason or an unlawful
reason, can stop someone because of their race. But so long as they can come up
with a basis that is not unconstitutional after the fact, that is enough for
this Supreme Court. And we’ve seen across the country millions and millions of
people stopped and frisked, disproportionately people of color. And that power
is really the product of the Supreme Court’s decision in Terry. And the
subsequent interpretations increasingly expansive interpretations of what
reasonable suspicion allows.
Chris Hedges:
You point out in the book
that the killings of Michael Brown, Walter Scott, Eric Garner, all began as
ordinary police interactions where police were within their constitutional
authority to approach, stop and engage, but it culminated with police murder.
Joanna Schwartz:
Yeah. This is a point that
has also been powerfully made by my UCLA colleague, Devon Carbado, who points
out that, by making the power to stop and frisk as broad as it is, it ends up
leading to interactions that can then ultimately culminate in the use of fatal
force. Because if the officer exercises their extreme power to stop and frisk
and then the person runs away, there is then the power and authority to pursue.
Or if a person the appears to the view of the officer to have a weapon, this
then authorizes the police under the Fourth Amendment to use fatal force
against that person whether or not they actually did have a weapon in their
custody. So by making it as easy as it is for officers to stop and frisk and
have that initial action interaction, they also pave the way toward more
violent and fatal uses of police power over those people.
Chris Hedges:
I teach in the New Jersey
prison system through Rutgers and the college degree program, and most of my
students are people of color, but very large black men say that because they’re
large, and of course George Floyd, Eric Garner, were very big men, that in and
of itself, just their size in the eyes of the police constitutes a threat and
they have to carry themselves far more carefully on the street because they’re
far more susceptible to Draconian forms of force simply because of their size.
Joanna Schwartz:
Yeah, that is not a
surprise to me, unfortunately. And the way in which the Supreme Court has
interpreted the phrase, unreasonable searches and seizures, is not from the
perspective of the person being searched and seized and whether it was
unreasonable for them to be subjected to that conduct when they had done
nothing wrong, but instead on whether it is reasonable in the eye of the officer
in the moment without the benefits of 2020 hindsight under all of the
circumstances that appear to them whether force was appropriate under those
circumstances. And it is a beyond unfortunate reality that assessment of threat
will in some circumstances relate to the plaintiffs, the person, the victims’
race and size.
Chris Hedges:
The Supreme Court has
legalized all court forms of warrantless searches. If you could explain how
these warrantless searches are legally justified and what effect they’ve had on
the public.
Joanna Schwartz:
Well initially, the warrant
requirement has been viewed as sort of a hallmark, a key of the Fourth
Amendment and of constitutional protections and the need for a warrant before
going into a person’s home more than anything which has been described by
conservative justices as sort of the pinnacle of constitutional protections.
That warrant requirement has been eaten away in part by this reasonable
suspicion standard that was first articulated in Terry that we were just
speaking about related to stop and frisks reasonable suspicion has come to play
an important role in weakening the standards as well for not knocking and
announcing presence before entering the home with a warrant and also the
allowance of many exceptions to the warrant requirement so that now this notion
that you have to have a warrant is being swallowed by exceptions to that rule,
all of which, or most of which are justified again by the same notion that you
need to give officers maximum leeway in order to protect from crime or to keep
people safe.
The whole warrant
requirement, the goal of having a warrant, the intent behind it was to have a
neutral third party, a judge or magistrate who could sit in and deliberate
about whether to allow this most extreme deprivation of privacy and liberty.
But that notion and those benefits have been outweighed time and time again by
this claim of the need for quick action and shutting out the ability to have
that neutral third party come in to assess the circumstances.
Chris Hedges:
Great. That was Professor
Joanna Schwartz on her new book, Shielded: How the Police Became Untouchable. I
want to thank The Real News Network and its production team, Cameron Granadino,
Adam Coley, Dwayne Gladden, David Hebden, and Kayla Rivara. You can find me at
chrishedges.substack.com
Speaker 4:
And the Chris Hedges report
gets some extra time now with a few minutes of bonus material with Chris and
his guest.
Chris Hedges:
So I want to ask you about
the role of trial judges in litigation. That’s again, something in your book I
didn’t really understand until I read what you wrote.
Joanna Schwartz:
Sure. Trial judges have
tremendous power and discretion throughout the litigation process and they have
power over whether and how to interpret various legal doctrines that are more
familiar to many, whether a constitutional right was violated, whether the
officer is entitled to qualified immunity, for example. But they also have
tremendous discretion and power to decide less obviously relevant things like whether
a request for discovery should be granted whether the party who’s requesting
the discovery needs to pay for the production of that discovery, whether
experts can be allowed to testify, what the timeframe is for the jury or for a
jury trial, who can sit as a juror. And at all of those stages, judges are
given tremendous discretion within the rules. There is a lot of mays and cans,
not wills and musts, in the legal rules. And those decisions, those very
discretionary decisions are extremely difficult to appeal because on appeal
courts are supposed to look to see whether the trial court abused their
discretion and because their discretion is so vast, it’s very difficult to
abuse.
What this ends up meaning
is, how a judge sitting in your case sees the world and views the case that you
have brought, it’s going to have a great impact on how strong that case
ultimately is allowed to be. And I tell the story in the book of a family who
were before a judge, very hostile to their case, who carved away in multiple
ways at their ability to seek a remedy in the case and ultimately led them to
settle on the eve of trial a claim for far less than what you might expect it
would have been worth because the value of the case really had been lessened
and lessened through the litigation of the claim.
Chris Hedges:
Well, you’re right. Not
only do plaintiffs lose trials usually against police, but you also write that
they’re often rewarded relatively little when they win. Why is that?
Joanna Schwartz:
Well, it’s difficult to
know always why juries award what they award or don’t award what they don’t
award because juries aren’t required to explain their rationale and their
rulings. But the way in which federal juries, and it’s true in many states as
well, but I’m focused here on the federal system, the way that they select jury
pools and jurors ends up weeding out a lot of people who would be sympathetic
or more likely to be sympathetic to plaintiffs and civil rights cases. Anyone
with a felony cannot serve as a federal juror. Juries are limited to people who
are registered voters. In order to receive a jury questionnaire, you have to
have stable housing. In order to fill the questionnaire out and return it and
appear when you are called, you likely need to have the time to do all of those
things, which may be more difficult with unstable employment.
And when there has been
studies looking at jury pools and how they compare to the community, there is
upwards of 30, 40% of black community members, Latino community members who are
not allowed to serve as jurors in those cases. And then once you actually are
in the jury pool, then the lawyer or judge can ask you a question about whether
you’ve ever had a negative experience with a police officer and whether you can
remain neutral despite those interactions. So at each of those stages, jurors
who might be more likely to see the world from the perspective of the
plaintiffs and civil rights cases are weeded out.
Chris Hedges:
Well, I live in Princeton
and I’ve done jury duty in Trenton, very poor city, and it’s filled with white
suburban people, cherry hill in the area, essentially rendering judgment on
poor black people they’ve already largely demonized to begin with.
Joanna Schwartz:
And the goal of a jury is
to have the opportunity to have your case heard before your peers, before your
community. And clearly our system is not doing a good job of that.
Chris Hedges:
Well, of course most of
them have to plea out anyway. They’re coerced to plea out. I think less than
94% don’t get a jury trial.
Joanna Schwartz:
This is a separate and
important question, but the ABA has just done a report about this and about the
damaging effects of really coerced plea bargaining, which I completely agree is
a huge problem that we have.
Chris Hedges:
I just want to close your
last chapter as a better way. So let’s look at what you propose to address
these injustices.
Joanna Schwartz:
So I do offer a lot of
different suggestions. In the last chapter of the book, they’re mainly focused
on what you can think of as backend accountability, sort of what to do when
police have violated people’s rights, how to make that aspect of the system
better, and I should say there are a lot of important things that have been
done or are being considered also at the front end of the system, ways to make
it less likely that police ever come into contact with the people whose rights
they ultimately violate. So cities across the country are considering ending low
level traffic stops, considering getting trained mental health professionals
involved to respond to people in mental health crisis and limitations on things
like no knock warrants and choke holds, and all of those kinds of interactions
or limitations along with more investment in other aspects of our social
support system, are really important and need to be pursued.
My focus on the book and on
the last chapter is really on that backend accountability. And there I think
that some of the most promising work is being done by state and local
governments. I don’t hold much hope in the Supreme Court or Congress taking the
kind of action that we need, but there are state legislatures that are stepping
up. Colorado in the weeks after George Floyd was murdered, passed a
comprehensive police reform bill. Among other things, it created a state law
right to sue for constitutional violations and prohibited the use of qualified
immunity as a defense. This is a kind of approach that New Mexico and New York
City have also adopted and that other states across the country are
considering. There’s also a lot that can be done at the local level. Police
departments receive a quarter to a third of many local government’s budgets,
and I think more could be demanded of those police departments in exchange.
I think that police
departments could be required to gather and analyze information from those
lawsuits brought against them with an eye toward preventing similar events from
happening in the future. I also think that the money to satisfy settlements and
judgments in these cases should be taken from police departments’ budgets. They
should have an incentive to reduce these costs and taking the funds out of
their budgets would be one way to do that. There’s really work that can be done
at every stage of government and even individuals reading the book or listening
to this conversation have things that they could do, advocating for their state
and local legislatures to take these actions and serving themselves as jurors,
for example. I mean, this is a place where a lot of jurors have been weeded out
of the pool for reasons that we’ve just described. So if you’re called to serve
as a juror, don’t avoid it.
Chris Hedges:
Great. That was Professor
Joanna Schwartz on her new book, Shielded.
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