The news cycle is loud, but we need to hear those who can’t shout
Prosecutor Tom Kidd was working for the city of Dayton, Ohio, when he observed a troubling pattern in the cases that crossed his desk. “I noticed there were a lot of turn signal violations,” Kidd says. Police officers were issuing the minor traffic infractions in only one region of the city, a predominantly black area. No white, middle-class drivers were being pulled over for turn signal violations.
According to Kidd, the traffic stops had a purpose: “You had law enforcement looking for opportunities to pull over vehicles in the hopes of being able to smell marijuana, for example. If you smelled marijuana, you then have a right to search the entire vehicle in the hopes of finding drugs, firearms, whatever.”
The days of Officer Friendly rescuing a cat stuck in a tree seem long gone. So-called active policing demonstrates how the role of law enforcement has changed. The shift partially stemmed from the war on drugs that began in the 1970s, but Kidd says today’s aggressive police engagement often isn’t beneficial to society.
A 2019 investigation of three Ohio cities—Cleveland, Columbus, and Cincinnati—showed racial disparity in police stops in all three places. In Cincinnati, for example, police made 120 percent more stops per resident in black communities than in white ones. Also, once stopped, black individuals made up 75 percent of the city’s traffic stop arrests. That doesn’t mean every stop or arrest was unwarranted or that racial profiling was necessarily involved: On the contrary, investigators said they ruled out bias at the personal level as a factor.
But according to Eye on Ohio executive director Lucia Walinchus, it’s doubtful the differences in traffic stop rates were due solely to higher traffic infraction rates in black neighborhoods. Instead, the differences are more likely due to police departments placing more patrols in those areas. “Concentrating officers in one area based on the number of arrests creates a vicious feedback loop,” Walinchus said. “Police hang out there more, pull more people over there, and thereby search more people there and then arrest more people there.”
The death of George Floyd in Minnesota and similar police-involved deaths in recent weeks thrust the issue of racial disparities in arrests into the spotlight, with mass protests on streets across the nation. After Floyd’s death, The New York Times looked at Minneapolis city data and reported that although blacks make up only about 20 percent of the city’s population, they make up about 60 percent of arrests where force is involved. Washington Post writer Radley Balko has compiled an extensive list of data examining racial disparity across the United States, not only in policing, but also in areas such as bail practices, death sentences, and inmates held in isolation. (Balko includes any contrarian studies he found, too.)
One example: According to a 2017 report by the National Registry of Exonerations, the rate of drug use is roughly the same among black people and white people, but blacks are almost five times as likely to go to prison for possession. Another example: A 2013 U.S. Department of Justice report showed that, among black drivers stopped by police, 19 percent were stopped for a vehicle defect, like a burned-out tail light, compared with 13 percent of white drivers. Yet another: Stanford University researchers analyzed 95 million traffic stops from 21 state patrol agencies and 35 municipal police departments. The study, published in Nature Human Behaviour, found that black people were less likely to be stopped after sunset when skin complexion is harder to see.
On the other hand, a 2006 study of that “veil of darkness” hypothesis in Oakland, Calif., didn’t show racial profiling in traffic stops. A handful of other studies also challenge the notion of racial disparity in policing. Still, most suggest the practice is widespread.
Everyone breaks the law, probably every day. Civil liberties lawyer Harvey Silverglate suggests the average American commits three felonies a day. (His book Three Felonies a Day argued “vague laws are the lynchpin” that allows the government to go after whomever they want to target.) Whether or not it’s accurate that everybody is a repeat felon, America unquestionably has a lot of laws on the books. According to researchers at the Library of Congress, there are so many federal laws that no official count exists. That contributes to the overcriminalization of behavior, says Kidd, the lawyer who noticed the turn signal violations.
Kidd is a criminal defense attorney today. He switched sides after being influenced by Prison Fellowship founder Chuck Colson and theologian Francis Schaeffer. Both were proponents of criminal justice reform that includes victim-criminal mediation, restitution, and second chances. Kidd says jails and prisons are overpopulated and aren’t always the best place for rehabilitation, especially for nonviolent offenders. The answer isn’t to demonize all police. But the police brutality that has come to light in recent weeks raises more awareness that changes are needed.
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As the United States continues to battle the coronavirus, Americans in 41 states are under orders to stay home. Every state and the federal government have declared an emergency, and enforcement efforts are escalating.
Four small towns in south Texas, for example, have announced police patrols and checkpoints. Edcouch city manager Victor De La Cruz said officers would cite those who cannot provide written documentation that they are an “essential employee.” In one instance Edcouch police escorted a citizen who was picking up prescriptions to ensure that he returned home immediately after the errand.
The nation’s state governors have issued over 760 executive orders pertaining to the coronavirus. Those orders, limiting citizens’ movements and ability to meet together and conduct business, raise a significant legal question: What are the constitutional limits of governmental powers during an emergency?
In Washington state, Gov. Jay Inslee last Thursday extended a stay-at-home order to May 4. Washington statute permits the governor to proclaim a state of emergency without consulting the Legislature for up to 30 days. During an emergency, he may impose a curfew, suspend state laws, and ban gatherings in open spaces provided the restrictions do not “conflict with the rights, under the First Amendment, of freedom of speech or of the people to peaceably assemble.”
“It’s very clear that state governors have, as a matter of federal constitutional law, extraordinarily broad authority,” said Joel Ard, an attorney based in Washington state. The Bill of Rights has never been interpreted to be absolute in its protections, he explained: “It has always been understood that state governments have the authority to quarantine to protect public health.”
However, Tony McDonald, an attorney in Austin, Texas, is concerned about the long-term precedent the latest executive orders may set. He says that prohibitions on the suspension of laws—a common feature of many state constitutions—are at the core of our constitutional order: “Restrictions on the king’s power and authority to suspend laws were the very first element of the English Bill of Rights from the 1600s.”
Dozens of governors and the Trump administration waived various laws in March. New waivers fast-tracked the licensing process for medical professionals and allowed retired healthcare professionals or medical students to begin working. Others permitted restaurant delivery services to offer alcohol or eased trucking regulations.
U.S. officials are also eyeing surveillance techniques in the coronavirus fight: The Washington Post reported that Google, Facebook, and other tech companies are in talks with the federal government about sharing users’ anonymized, aggregated mobile phone location data with federal officials. Such information, which Google and other data analysts have already begun to publish, reveal to what extent Americans are abiding by stay-at-home orders.
Public restrictions are not new in the United States. During the 1918-1920 influenza pandemic that killed half a million Americans, municipalities removed communal drinking cups in public spaces, closed dance halls and salons, and sometimes quarantined the households of the sick.
Nancy Bristow, author of American Pandemic, said that officials during that time didn’t restrict the movement of healthy citizens. “But public gatherings and events were frequently prohibited, and many public spaces were closed, such as schools, bars, and restaurants.”
Consumed with the war effort and not wanting to cause alarm, President Woodrow Wilson never publicly mentioned the pandemic, and Congress passed no legislation addressing it.
Today, a dirty secret of U.S. emergency powers is their longevity: Thirty-one national emergency declarations continue to be renewed annually, including declarations regarding the 1979 Iran hostage crisis and the 9/11 terrorist attacks.
But the courts would likely overrule an emergency order that restricts American liberties indefinitely, said Ard: “It almost certainly does have to be exercised in a way that’s rationally related to the problem they perceive and time-limited.”
Attorneys say that a growing number of lawsuits, including First Amendment suits in at least five states, could soon become a deluge.
McDonald is unsure they will meet success. “Courts have proven throughout history that they are unwilling to confront the executive in times of public emergency,” he said.
“Is this situation unlawful? I’m not sure.”
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The antechamber of the Mesquite Library in Phoenix, Ariz., is full of natural light and potted palms. Sporting a ball cap, Valerie Jones strides through, but turns back to give her opinion on library fines. Would a library without overdue book fines help her? “Yes!”
Jones has a 6-year-old son who checks out 20 to 30 books at a time. She encourages his appetite, but when it’s time to return the books, it’s impossible to find them all. Whatever she doesn’t return incurs a fine. The fines build up, her library account is blocked, and she can only afford to pay in installments. The result: Her son stops checking out books.
Starting in November, this will no longer be a problem. The “All Fines Forgiven” initiative at Phoenix Public Library branches such as Mesquite will remove daily fines for overdue books and forgive existing balances. Patrons still have to pay a replacement fee after 50 days, but if they return the book, the fee is waived.
Phoenix isn’t the first city to end library fines, but it is the biggest so far. About 200 other library systems in the United States have become fine-free. In January, the American Library Association passed a resolution encouraging all libraries to do so.
Eliminating fines evokes a mixed response from patrons. Some, like Jones, welcome the idea. Others, mostly older patrons, worry people will become irresponsible and stop returning books. (Nobody seems to anticipate personally becoming the problem.)
Phoenix is the county seat of Maricopa County, and the county library system, which went fine-free in May, reports no problems with book hoarders yet. Other libraries generally report that removing fines actually increases circulation. Their position: People recognize the value of a library, are responsible, and understand they are borrowing.
Phoenix Public Library spokeswoman Lee Franklin says fines disproportionately affect low-income households and those without books. She has seen parents who bring children to the library to read but tell them, “We can’t take that home.” She hopes removing a potential financial barrier will make books more accessible.
Yolanda J., who works at a Phoenix branch in a low-income area, agrees: Patrons approach her desk to ask what fines they owe. Often when they hear their balance, they turn around and leave. But patron Doyle Magouirk, who wears a gray beard, has a different perspective: When he goes overdue, he keeps the book until he accrues a large fine. When he gets his monthly paycheck, he pays his fines: “That’s how I donate to the library.” Right now he owes $11.50 and intends to pay before the fine is forgiven.
Carol Romanchuk is happy to see fines disappear because she’s always late, and the money doesn’t directly benefit the library: “I used to think it went toward new books, but then I learned it just went to the general fund, so what’s the point?”
Romanchuk is right. Phoenix Public Library currently collects about $200,000 a year for overdue books, money that goes into the city’s general fund. The Maricopa County library system, funded by property taxes, already has a program to help municipal libraries. When Phoenix joins the fine-free movement, the county will supply the city’s libraries an additional $170,000. So, since money in the city general fund may not return to the library system, the new policy might help it financially.
Still, the next time politicians propose raising taxes to help libraries, voters will know they’ve already given up one revenue source.
—Victoria Johnson is a graduate of the World Journalism Institute mid-career course