Twenty years ago, the deaths of George Floyd and Rayshard Brooks at the hands of white policemen would have led to loud protests by their families and friends, and the usual ensuing investigations that would find little fault. With time their stories would have faded away as their families sought, in vain, justice. Civil suits for their wrongful deaths would have (and may still) cost the taxpayers millions, not a penny of whichever comes from the police on the scene.
Now, though, technology has put a camera in every pocket, and we are seeing in real time the ugly truth of what white people have generally denied and black people have lived with for decades.
Their deaths have brought together a startling confluence of issues against the backdrop of a disorienting pandemic.
The first issue is mass incarceration. It would take pages to analyze the statistics, but, stripped to the basics, America has the highest rate of incarceration of any country in the world. We have only 5% of the world’s population, but 25% of its prisoners. There are 2.3 million Americans behind bars, a disproportionate number of them are black or brown, and most are locked up for nonviolent offenses. Led by tough politicians and prosecutors and their war on drugs and three-strikes-and-you’re-out mentalities, we incarcerate our own at an alarming rate. One million young black men are being warehoused behind bars for drug offenses. Once released, they cannot legally be discriminated against because of their race, but they face a lifetime of discrimination as convicted felons. At the current rate of incarceration, one in three black men will serve time.
George Floyd’s alleged crime was passing a $20 counterfeit bill. He was alleged to have been drunk or on drugs in public, another minor crime. When confronted with the prospect of arrest, he resisted, another crime. Would it have been possible for the police to issue him a citation to appear in court, then take him home? Ninety-five percent of those charged with crimes show up in court to face their charges.
Rayshard Brooks’ alleged crime was being drunk in public, not exactly a capital offense. He had fallen asleep at the wheel and was blocking traffic. For 20 minutes the two policemen interrogated him, during which time he offered to walk to his sister’s home. When confronted with an arrest, he resisted and tried to run away, leaving his car behind.
From street cops to federal prosecutors, the mind-set in this country is to arrest as many people as possible, get them in jail, then throw everything at them so they’ll be forced to plead guilty to something.
The second issue is bail reform. Every black American knows that an arrest will be compounded by the cruelty of bail. Regardless of the crime, a suspect, presumed innocent until proven guilty, must post a cash bail. This invariably forces the family to scramble to find scarce money while the suspect sits in jail, often for days or weeks. Jobs are lost, families are disrupted, driver’s licenses are revoked. To have any chance of getting processed or getting out, the accused are often forced to plead guilty to other, often more tenuous charges. The abusive use of plea bargains is the greatest single cause of wrongful convictions.
Is it really surprising that both Floyd and Brooks resisted arrest?
The third issue is the militarization of our police. After decades of bloated defense budgets, the Pentagon has far more hardware than it can ever hope to use. It sells its surplus to the police, and nowadays even smaller cities have their own tanks and helicopters to quell riots and stop the looting. Armed with more military equipment than our soldiers had in Vietnam, the police often feel the need to flex their muscle and try out their fancy weapons.
The vast majority of white Americans are appalled at the deaths of George Floyd and Rayshard Brooks and support the peaceful protests. They are being met with small armies of riot-trained commandos, some with itchy fingers. The gassing of the peaceful protestors by federal police in Lafayette Park, carefully planned and orchestrated to set the stage for a bizarre presidential photo-op, is a perfect example of state-sanctioned police brutality. Dozens of lawsuits will be filed, and settled out of court, with the taxpayers once again holding the bag. The First Amendment gets stomped on by people who’ve never read it.
We are living in a police state, where SWAT teams stage dramatic night time raids to arrest people for writing bad checks and warrior cops fire rubber bullets at protestors and reporters with impunity. Policing for fines, fees, and forfeitures produce badly needed cash for cities, but also lead to aggressive tactics, especially in poor neighborhoods. Prosecutors have at their disposal over 5,000 criminal statutes to play with. Seasoned judges are handcuffed by harsh guidelines and have no discretion when sentencing. We spend twice the money on law enforcement, courts and prisons than on welfare and food stamps. No wonder 15% of American children face hunger issues. We spend $30,000 a year to house an inmate, and $12,000 a year to educate a child in the public schools.
The fourth issue is by far the most complicated: race. The glaring truth is that black suspects are treated differently than white suspects. Racism is a huge factor in every aspect of criminal justice – profiling, arrests, bail, prosecution, trials, convictions, sentencing. Race is a significant reason for wrongful convictions.
For the past 12 years, I’ve had the privilege of serving on the board of the Innocence Project. Its mission is to exonerate the innocent who are incarcerated, and there are thousands of them. We also push for new laws and policies that seek to remedy the systemic causes of wrongful convictions. In the past 25 years, we have worked to exonerate 370 innocent men and women through DNA testing. Seventy percent of them are black or brown.
Perhaps the deaths of George Floyd and Rayshard Brooks are forcing America to confront these issues, and though we have been here before, it seems as if we are finally at the breaking point. Millions of Americans, black and white, are in the streets demanding justice and meaningful change, and the protests are growing, not fading away. It is time for action.
Some of the solutions could happen overnight, if only we had the political will. Cash bail for nonviolent offenses should be eliminated, freeing tens of thousands of suspects. All, I repeat, are presumed to be innocent.
We should surrender in the war on drugs, lay down our arms, and decriminalize – not legalize. The billions we waste on drug courts and prisons could be spent on prevention, education, recovery, and rehabilitation. Harsh, mandatory sentences should be eliminated and replaced with sensible guidelines that allow our judges’ discretion. These two ideas alone would drastically reduce our prison populations and take enormous pressure off state budgets.
The policing for fines, fees, and forfeitures must be seriously curtailed. Each year hundreds of thousands of low-wage workers lose their drivers’ licenses because of unpaid and unfair court fines and fees.
Police brutality and prosecutorial misconduct go unpunished because the bad actors are protected by a shield of immunity. But this immunity is granted by statutes that can and should be removed so that everyone is accountable.
Other solutions are more complicated. Police spending needs to prioritize the building and protection of safe and equitable communities, not surveillance and punishment.
On the issue of race, I offer nothing original. Until white Americans can look at black Americans with empathy because of their history of enslavement and their epic struggle for equality, and view them as equals, little will change.
I challenge all white people to watch the eight-minute video of George Floyd suffocating under the weight of a policeman’s knee on his neck, and ask ourselves: Would this have happened had he been white?
Watch the video of Rayshard Brooks being shot twice in the back as he ran away and ask ourselves: Would this have happened had he been white?