Above Photo: By Associated Press.
Video cameras have transformed how we view police killings. First, there was the horrifying homicide in July 2014 of Eric Garner, placed in a choke-hold for selling loose cigarettes and denied medical assistance for several long minutes despite pleading “I can’t breathe” eleven times. Then there was the shocking slaying in April 2015 of Walter Scott, stopped for a non-functioning third brake light and shot in the back in broad daylight while running away from the police. Most recently, there was the fatal shooting this July of Samuel Dubose, stopped for a missing front license plate and shot in the head while attempting to drive away. In all three cases — two of them caught by citizen videos and the third by police camera — the victims were African-American.
In the wake of these events and protests that have done so much to focus public attention on them, our knowledge of police killings has rapidly expanded. So, too, has the issue’s political salience. The videos — and the outrage that followed — helped ignite the most powerful civil rights movement since the 1960s. Thanks to this movement, the issues of police killings and mass incarceration are now squarely on the public agenda.
Like the movements against lynching, state-sanctioned segregation and the death penalty before it, today’s movement is part of a centuries-long struggle for racial justice. These movements have repeatedly challenged the taken-for-granted practices of the day and redefined them, step-by-step, as no longer morally acceptable. As I will discuss below, this pattern describes the struggle that led to the decline and ultimate elimination of lynching, and it captures as well the ongoing fight against the death penalty that may well culminate in its abolition. Today’s movements aim at a similar transformation: to define routine police killings and mass incarceration — practices now taken for granted as normal features of American life — as neither normal nor morally acceptable.
How Common Are Police Killings?
The current movement emerged out of mounting anger over the killing of unarmed citizens by police. When the question of how often such killings take place quite naturally arose, the shocking answer was that no one knew — a state of affairs the FBI director James Comey has aptly described as “embarrassing and ridiculous.” Though the FBI annually issues a report that provides figures on “justified police homicides,” reporting from local police forces is voluntary and thousands of them turn in no information. Investigations by the Wall Street Journal and FiveThirtyEight determined that hundreds of police killings went unreported annually, but they could do no more than provide rough estimates. This is in striking contrast to many European countries, where every killing by the police is carefully recorded; indeed, in Germany and Finland, each and every shot fired by the police is entered into a national database.
In response to the upsurge in public interest in police killings, the Washington PostandGuardian have stepped in to perform a task that should have been done by the government: the recording of every police killing. Though the newspapers use slightly different methodologies, both newspapers draw on two citizen-initiated sources, “Killed by Police” and “Fatal Encounters,” which collect news reports of people killed by law enforcement offices, and both include data on whether the person was armed.1 In addition to the time and place of the killings, both databases include basic demographic information, including race, gender, and age. Neither attempts to determine whether the killings should be deemed “justified.”
As recently as the summer of 2014, when the deaths of Michael Brown and Eric Garner thrust the issue of police killings into national prominence, the most widely used estimate of the number of people killed by police was provided by the FBI’s Uniform Crime Report: slightly more than 400 per year. But we now know that this figure was a gross underestimation, for the actual number is more than 1,100 police killings each year — about one every eight hours.2This is a level of police violence that is simply unimaginable in other wealthy democratic country; in Germany in 2012, a total of seven people were killed by the police, and in England a single person was killed in 2013 and 2014 combined. And Japan, a nation of 126 million people that is as non-violent as the US is violent, had no police killings over the past two years.
Like the movements against lynching, state-sanctioned segregation and the death penalty before it, today’s movement is part of a centuries-long struggle for racial justice.
Those killed by the police are of course not representative of the population; the investigation by the Guardian and the Washington Post tell us who they are. About 95 percent are male, and approximately half are 34-years-old or younger. African-Americans are heavily over-represented among the dead, at about one in four — double their percentage of the population. Whites constitute about half of those killed by the police and Hispanics 15 percent, with the remainder Asian-Americans, Native-Americans, and “unknown.” According to the Guardian, about one in four of those killed by the police — more than 250 people per year — suffer from mental illness.
Though 88 percent of those killed by the police die by gunshot, death by other means is not uncommon. Tasers, advertised as a “safe” alternative to guns, can be lethal; through October 31 of this year, tasers had killed 47 people. Death from being struck by police vehicles, often in car chases that take innocent lives, resulted in 31 deaths during the first ten months of 2015. Death in custody — the tragic case of Freddie Gray in Baltimore is the best known — has taken 35 lives. African-Americans have been disproportionately frequent victims of deaths by taser and in custody, comprising 38 percent and 32 percent of all victims, respectively, compared to 24 percent of all police killings (with 11 percent “unknown”).3
Though the horrifying and historically powerful image of the unarmed black man shot by a policeman is now firmly imprinted in the public’s mind, the majority of those killed by the police are in fact armed. But not all weapons are as deadly as guns; in the Guardian study, almost one-third were non-gun weapons, including baseball bats, machetes, and knives. In some cases, what seemed to be a gun turned out to be a fake gun: a BB gun, an air gun, and — in a few tragic instances — a toy gun held by a teenager.
But there is no question that policing in America is a dangerous job and that law enforcement officers sometimes face genuinely lethal threats. Yet it is also true that no small number of the people killed by the police are unarmed. Here the Guardian and Washington Postinvestigations diverge sharply, with the Guardian and the Post identifying 189 and 77 such cases, respectively, through October 31st of this year. But the difference is more apparent than real, for the Post only includes those individuals who are shot by the police, while theGuardian includes deaths by taser, police vehicles, and in custody as well as shooting.
Since it is police shootings of the unarmed that are at the epicenter of the current controversy, these cases warrant special scrutiny. The particulars of each case vary yet there is a pattern in who is killed; of the 77 such cases documented by the Washington Post, 36 percent are black men.4 This is well above the figure for all police killings and, when combined with the over-representation of African Americans among those killed by tasers and in custody (almost all of whom were unarmed), the overall pattern confirms that special sense of vulnerability felt by black people in their encounters with the police is founded in reality.
Why So Many Deaths?
Why are there such an extraordinary number of police killings in the United States? The short answer is that America is an extremely violent society, and that an unusually high rate of deaths at the hands of law enforcement is a logical consequence of the high levels of violence. But there is one aspect of violence in the United States, where homicide is more than double that of any other advanced country, that bears particular mention: the pervasive presence of guns. The historian Richard Hofstadter captured this brilliantly in a classic 1970 essay:
Western or otherwise, the United States is the only modern industrial urban nation that persists in maintaining a gun culture. It is the only industrial nation in which the possession of rifles, shotguns, and handguns is lawfully prevalent among large numbers of its population. It is the only such nation … so attached to the supposed “right” to bear arms that its laws abet assassins, professional criminals, berserk murderers, and political terrorists at the expense of orderly population — and yet it remains, and is apparently determined to remain, the most passive of all the major countries in the matter of gun control.
Needless to say, little has changed in the intervening 45 years.
The police are both victims and carriers of this gun culture. Readier to shoot than their counterparts in other countries, they are also far more likely to be shot at. Between 2004 and 2013, an average of 56 police officers were killed annually, more than 90 percent of them by guns, and about 70 percent by handguns alone. Just how high a number this is comes clear when it is compared to other countries; in a typical year, one officer is killed in England andCanada, while the number of police deaths in Australia and New Zealand is often zero. There can be little doubt that the guns are at least in part responsible; a recent article in theAmerican Journal of Public Health that examines 782 homicides of police officers between 1996 and 2010 found that officers in states with high rates of gun ownership were three times more likely to be killed than in states with low rates of gun ownership. Little wonder, then, that police associations are often among the strongest advocates of gun control.
High rates of killings of police are in truth a long-standing American tradition. By historical standards, police homicides today are relatively low; in the 1920s, in a country with roughly one-third the population, about twice as many police were killed annually. Homicide rates, too, have been exceptionally high in the United States throughout the twentieth century. As Hofstadter noted, firearms were responsible for more than a quarter of a million homicides between 1900 and 1964; since 2001, we have added an additional 150,000 gun killings.
Working in a society marked by high rates of homicidal violence and a pervasive mistrust, rooted in centuries of racial conflict, between minority communities and law enforcement, the police in the United States are in urgent need of training that meets the highest international standards. But the reality is that the training of police in America is woefully deficient. While police training nationwide in the United States averages 19 weeks, police in other countries receive training that can last more than two years.
Maria Haberfeld, a professor at John Jay College of Criminal Justice in New York who has done extensive research on comparative policing, is firmly convinced that “the police are better prepared to deal with the public” in other countries she has studied. American police,she has concluded, “are not trained enough in the emotional, psychological, physiological aspects of using force,” adding pointedly: “an average police department, all they care about is whether you have a GED and you didn’t use drugs in the last three years — if somebody looks at this a little bit closer, then it’s really scary.” A former member of the NYPD, who spent several years doing patrols in Brooklyn housing projects before quitting to become a hairdresser, put the matter even more forcefully: “think about it: seven months to use a hair dryer; six months to use a gun.”5
But the reality that police training in the United States is both short and inadequate does not mean that it does not exert a profound effect on the officers who go through it. Understandably concerned about officer safety, police academies spend far more time on firearms training, devoting an average of 60 hours to it, than on mediation and conflict management, which receive only eight hours. Seth Stoughton, a former police officer in a large city, went through the training and reports that it relentlessly inculcated the belief that “cops live in a hostile world” and emphasized that they must always be on guard because, as cops are fond of saying, “complacency kills.” In addition to being shown heartrending dash-cam videos of police being gunned down due to a lack of vigilance, they are taught that “hesitation can be fatal.” This training leads police “to shoot before a threat is fully realized, to not wait until the last minute, because the last minute will be too late.”
… though the risks police face are real, their training causes them to systematically overestimate them.
Constantly barraged with the message that their survival depends on hyper-vigilance, they shoot most often, Stoughton maintains, “not out of anger and hatred,” but quite simply “because they are afraid.” Yet though the risks police face are real, their training causes them to systematically overestimate it. For as Stoughton points out, police officers interact with civilians about 63,000,000 times a year and are assaulted in 0.09 percent of all interactions, injured in 0.02 percent, and killed in 0.000008 percent. The task of good police training, hesuggests, is to “help officers put these risks in perspective.”
If the type of training law enforcement officers receive contributes to the remarkable number of police homicides in the United States, so too does the almost total impunity with which police kill. In theory, police officers are accountable for their actions and are not above the law. But in practice, they are almost never charged with a crime, and in those rare cases where they are charged, they are seldom convicted. According to Philip M. Stinson, a criminologist at Bowling Green who studies the police, “To charge an officer in a fatal shooting, it takes something so egregious, so over the top, that it cannot be explained in any rational way.”
A comprehensive investigation by the Washington Post of the many thousands of fatal police shootings over the past decade revealed that only 54 officers were ever charged. In the great majority of cases, the person killed was unarmed, and in many of them at least one of these other factors obtained: a video recording, a victim shot in the back, and/or incriminating testimony by fellow police officers. Of the 54 cases in which an officer was charged, only 11 resulted in convictions.6 As difficult as it is to get a conviction, it is even harder to impose substantial time in prison, with both juries and judges reluctant to give stiff sentences. The small number of police convicted usually received little prison time, averaging four years and sometimes only weeks. For the entire decade covered by the Post investigation, no officer received a sentence longer than 10 years.
A separate study of police killings in New York City over 15 years by the New York Daily Newsyielded results similar to those of the Post investigation. Of 179 cases since 1999, only three led to indictments and just one to a conviction — a ruling that included not a day of jail time. The period began with the notorious case of Amadou Diallo, a 22-year-old African immigrant who was mistaken for a rape suspect and shot 41 times. Near the end of the period was the case of Eric Garner, who died from a choke-hold, the use of which was officially prohibited by NYPD policies.
Though but one of the many hundreds of police killings that occur each year, the chilling death of Eric Garner warrants special attention, for it illuminates both the dynamics of impunity and the public’s reluctance to punish the police. The events leading up to Garner’s death were caught on video and show him saying “I can’t breathe” eleven times. The medical examiner’s finding was that Garner’s death was caused by the choke-hold and compression to his chest caused by several officers who piled on to him. The video of the events leading to Garner’s death went viral, and public outrage and demands for prosecution of the officer who had placed him in the choke-hold quickly mounted. But the District Attorney who presided over the case, Daniel M. Donovan Jr., signaled that he did not wish to prosecute and, to the astonishment and fury of many who had watched the video, the grand jury declined to issue an indictment. In a special Congressional election held in May of this year, the people of Staten Island, far from repudiating Donovan and his failure to prosecute the police responsible for Garner’s death, elected him to Congress with almost 60 percent of the vote.
The Movement Demands Change
The case of Eric Garner — and a number of other depressingly similar cases in which unarmed black men were killed by the police — helped spawn a new civil rights movement. Propelled forward by the evocatively named Black Lives Matter movement and other grass-roots organizations, the movement was given a huge boost by the availability of videos, many of them taken by citizens, that showed out-of-control and sometimes lethal actions by the police. Killings that in the past would have been easily covered up because of the absence of compelling evidence to counter the official police narrative now went viral on the internet. The singular achievement of Black Lives Matter and associated movements was to turn a long-simmering problem that had nevertheless remained in the shadows into a major political issue. Like their predecessors in the long struggle for racial justice, they did not shrink from militancy and have employed a variety of tactics, including street demonstrations, die-ins, traffic blockages and disruptions of highly visible political events.
But Black Lives Matter and its allies did more than propel the issue of police killings into public prominence; they also helped inspire a broader movement that has put forward concrete proposals to address the problem. With the release this year of Campaign Zero, a report closely connected to Black Lives Matter whose stated purpose is to present “comprehensive solutions to end police violence in America,” and Building Momentum From the Ground Up: A Toolkit for Justice in Policing, by the Center for Popular Democracy and Policy Link, a sweeping grass-roots approach to curtailing police killing is now available. While not identical, the two reports include many of the same recommendations; strikingly, a report by the President’s Task Force on 21st Century Policing, a body filled with major figures in the law enforcement community, came to many of the same conclusions. Something approaching a consensus, then, has emerged on how to reduce police killings; the question is whether the political will exists to implement the proposals in the face of the inevitable push-back.
The starting point for any effort to curtail killings by police is to rectify the stunning absence of data on the number of police homicides. But it is not enough that every police killing be reported to a national database; in addition, the United Sates should follow the lead of Germany and other countries where every bullet fired by the police is recorded. Given that taser guns have already resulted in 47 deaths so far this year, all firings of tasers should also be entered into a national database. A bill introduced to the Senate by Barbara Boxer (D-CA) and Cory Booker (D-NJ) would be a useful first step; it would make mandatory the recording by the Department of Justice of every police killing and every time someone was shot or injured, with the race and gender of the victim and the involved officers included in the report. The bill would also require reporting of whether or not the victim was armed with a weapon.
Those protesting police violence do not, of course, think that the recording of each killing and its entry into a national database is sufficient; they also want police officers responsible for unjustified killings to be prosecuted. In principle, such prosecutions should be led by the local district attorney, but in practice this rarely occurs. The reason is that district attorneys are heavily dependent on the cooperation of the police to prosecute criminals, and they have a deep vested interest in maintaining good relations with the local police. Charging an officer who killed a civilian with a felony — and the risk of the jail time that goes with it — is not compatible with that interest. Yet even the existing system is not entirely immune to movement pressure and public outrage; thus far in 2015, a dozen officers have been chargedwith murder or manslaughter as a consequence of police shootings, up from an average of five per year over the decade ending in 2014.
Campaign Zero and Building Momentum from the Ground Up both make the same demand: that an external and independent prosecutor, based at the state rather than local level, be charged with the task of investigating and, where appropriate, prosecuting every case in which a civilian is killed by a law enforcement officer. It is essential that the office housing this independent prosecutor have adequate resources to conduct investigations and that these investigations be carried out by people not tied to local law enforcement. As the President’s Task Force rightly notes, “the public confers legitimacy only on those who they believe are acting in a procedurally just way,” and nothing undermines the legitimacy and trust of the public more than the sense that the police can kill members of the community with impunity. Genuinely independent and external investigations of police killings, with the results of these investigations made available to the public, would be an important first step in building public trust.
To reduce the number of police killings, police training must be radically reformed. Though the official mission of the police is to “serve and protect,” police officers often think of themselves as “warriors” rather than “guardians.” The President’s Task Force proposes a fundamental reorientation of police culture, with the mindset of police shifting to a self-conception as “guardians” who view procedural justice, accountability and transparency as guiding principles. This would require a far-reaching shift in police training, which relentlessly transmits the message that only the ever-vigilant survive and that “enemies abound and the job of the Warrior is to fight and vanquish their enemies.”
… the United Sates should follow the lead of Germany and other countries where every bullet fired by the police is recorded.
But changing police culture, a formidable task in itself, is only a beginning, for the police need to be taught new skills if they are to function more effectively in the community. In particular, police training needs to emphasize the development of sophisticated skills in mediation and conflict resolution — precisely the kind of skills that can help de-escalate dangerous situations. So, too, do the police need better training in dealing with mentally ill people. There is no shortcut to the development of such skills; German police, who rarely fire their guns and whose training is widely viewed as a model for other countries, train for at least 130 weeks. But perhaps as important as length and rigor of the training is the relentless emphasis in Germany on alternatives to pulling a trigger. Colonel Uwe Thieme, the senior police director in the office for education, training and human resources in the state of North Rhine-Westphalia, concisely describes the orientation: “We try to make all police officers recognize that you are not a good guy if you are shooting. You are a good guy if you are not shooting.” This is the polar opposite of American police training, where police academies relentlessly show terrifying videos that can lead to only one conclusion: that failure to shoot can be fatal.
Police academies will no doubt justifiably continue to emphasize vigilance and to stress that law enforcement is a dangerous job. But both the videos and the mass media exaggerate the risks of policing. To put the actual risks in perspective, police trainees should routinely be taught that there are thirteen jobs more dangerous than policing (roughly 10 deaths per 100,000), including logger (over 80), fisherman (70), roofer (nearly 40), truck driver (over 20), taxi driver (15) and maintenance worker (14). They should also be taught that killings of police have declined sharply in recent decades, having been cut by more than half since the 1970s. And they should be taught that knives and other weapons besides guns pose little risk to their lives; between 2008 and 2012, guns were responsible for over 91 percent of all police deaths and knives less than one percent.7 Yet each year the police continue to kill hundreds ofpeople who are not armed with guns.
Both Campaign Zero and Building Momentum From the Ground Up have endorsed the use of police body cameras, but only as part of a larger strategy to stem police violence that would include mandatory reporting, independent investigations and radically reformed police training. Police should not, they insist, have the option of selectively turning off body cameras and dash-cams; indeed, if footage is unavailable there should be an assumption of police misconduct. But equally important is the right of citizens to film the police, which should be vigorously protected, for it is not uncommon for the police to confiscate cell phones and to threaten people who are recording them. By no means a panacea, body cameras and citizen videos promise to increase police transparency and accountability and may well reduce police violence. It is no accident that video evidence has been available in every case this year in which a law enforcement officer has been charged with a crime for killing a civilian.
In addition to police body cameras and the protection of a citizen’s right to film the police, activists have also demanded the establishment of clear standards for the use of lethal force. Shockingly, not a single American state is in compliance with international standards for the use of force. These standards are outlined in an important report by Amnesty International released this May; the United States, as a signatory to such treaties as the International Covenant on Civil and Political Rights, is legally obligated to respect these standards. According to international law, police officers can use lethal force only when they or others face the threat of imminent death or severe injury and when no other means is available. The level of force must be no more than the minimum necessary and must be proportionate to achieve the objective. Officers are required, when feasible, to give a verbal warning before they shoot and must provide medical assistance as soon as possible to the injured. The President’s Task Force expressed the moral framework underlying UN and international standards well, insisting that “a clearly stated ‘sanctity of life’ philosophy must be at the forefront of every officer’s mind.”
Both Campaign Zero and Building Momentum from the Ground Up are in full agreement with Amnesty International’s objective of bringing the United States into compliance with international standards for the use of force. But they also have specific proposals of their own. In particular, they want police departments to have clear written policies for the use of all kinds of force, including non-lethal force, and they want police to be held accountable when they violate these policies. With the goal of reducing the number of police killings, they propose that all officers have mandatory training in de-escalation, that they carry a non-lethal weapon and that they be prohibited from using choke-holds. According to Campaign Zero,police killed 91 people in 2014 who were stopped for traffic violations. Activists want an end to such traffic-related police killings, and to dangerous high-speed police chases, which kill an average of 87 bystanders every year. And they want to systematically monitor how police use force, establishing an early warning system to correct those officers who have used excessive force, and to terminate those officers found guilty of multiple or serious offenses.
The Scourge of Mass Incarceration
Black Lives Matter and associated movements began as protests against the killings of unarmed African-Americans, but they also recognize that such killings are but the brutal leading edge of an increasingly Kafkaesque criminal justice machinery, intimately tied to the issue of mass incarceration. Beginning in the 1970s, the United States embarked upon a strange social experiment without precedent in its history and never tried in any other democratic country: to confine vast segments of its population to prisons and jails. In 2014, more than 2.2 million people were incarcerated — a total larger than the combined populations of Boston, Washington and San Francisco. Nothing like this had ever happened before in American history; as recently as 1972, there were just 200,000 people in federal and state prisons, but by 2008 this number had risen to 1.6 million. And nothing remotely like this ever happened in any other wealthy democracy; the United States now has an imprisonment rate of over 700 per 100,000 inhabitants, compared to 147 in the United Kingdom, the nation which has the second highest rate of incarceration. With less than five percent of the world’s population, the United States now holds close to 25 percent of the world’s prisoners.
Activists are well aware that people of color are ever more likely to be ensnared into this gigantic machinery of criminal justice. In 2014, more than 800,000 blacks were in prison or in jail, alongside more than 438,000 Hispanics; together they constituted over 58 percent of all prisoners.8 The toll of this vastly expanded penal apparatus on African-Americans has been particularly staggering. Of black males born between 1945 and 1949, 10 percent have been incarcerated by age 30 to 34; of those born between 1975 and 1979, who came of age after the prison boom, 27 percent had been imprisoned by the age of 30 to 34. But the effects of the rise of mass incarceration on the most disadvantaged segments of the black community have been especially devastating; in the 1975 to 1979 cohort, 68 percent of those who had dropped out of high school served time in prison or jail by the age of 30 to 34. For them, and for many young African-Americans men who graduated high school but went no further, doing time has become not an aberration, but a routine rite of passage.
The extraordinary extension of the penal system into the lives of the black community helps explain why activists, while continuing their campaign against police killings, are devoting increasing energy to the task of reversing mass incarceration. To be sure, the killing of nearly 300 African-Americans each year by the police is by any standard a national scandal — and one that calls to mind of a long history of deaths at the hands of law enforcement. But the statistical likelihood that an African-American male will be killed by the police is a given year — 0.000015 percent or about one in 66,000 — is modest compared to the likelihood that he will find himself in prison or jail. In 2014, four percent of all black males were incarcerated, making confinement to prisons or jail over 2500 times more likely than being killed by the police.9 And incarceration is only a part of America’s gigantic system of criminal supervision; in addition to the more than 2.2 million people in prison or jail in 2012, an additional 3.94 million were on probation and 851,000 were on parole.
Even these figures do not convey the damage that the enormous growth of the criminal justice apparatus has done to the fabric of the black community and the texture of daily life. For the incarcerated are also the sons and daughters, the brothers and sisters, and the fathers and mothers of those family members who, at least for the moment, are not entrapped in it. Between 1980 and 2008, the percent of black children with a parent in prison or jail rose from slightly more than two percent to 12 percent.10 White families, too, were affected by the rise of mass incarceration; while under two percent of white children had a parent in prison or jail in 1980, that number more than tripled to seven percent in 2008.
Beginning in the 1970s, the United States embarked upon a strange social experiment … never tried in any other democratic country: to confine vast segments of its population to prisons and jails.
The consequences of mass incarceration persist long after people are released from prison, for they are enduringly marked by society as ex-convicts. Ta-Nahesi Coates vividly described its effects in a recent article in The Atlantic:
Incarceration pushes you out of the job market. Incarceration disqualifies you from feeding your family with food stamps. Incarceration allows for housing discrimination based on a criminal-background check. Incarceration increases your risk of homelessness. Incarceration increases your chances of being incarcerated again.
Mass incarceration also deprives an extraordinary number of ex-prisoners of the basic democratic right to vote. In 1976, 1.17 million citizens who had committed felonies were prohibited from voting; by 2010, that number had risen to 5.85 million. Not surprisingly, blacks are disenfranchised at four times the rate of non-African-Americans. Florida, the state that decided the 2000 election, is the worst offender, having disenfranchised over 20 percent of the state’s African-Americans in 2010.
Both Campaign Zero and Building Momentum From the Ground Up offer concrete and practical proposals that would begin the difficult process of reversing the decades-long trend towards mass incarceration. The starting point would be the decriminalization of behaviors that do not pose a threat to public safety. At present, police spend a great deal of their time charging people for such offenses as drinking alcohol in public, loitering, panhandling, playing loud music, possessing marijuana, and sleeping on the subway. Some, though not all, of these offenses constitute a de facto criminalization of poverty and homelessness. Campaign Zero explicitly calls for an end to “broken windows” policing and “stop and frisk” policies that for many are the first step toward entanglement with the criminal justice system. The police, they maintain, would better serve the public by focusing their energies on cases of violent crime, which now take up a mere 10 percent of their time.
One other promising way to reduce the number of people in prison would be to expand existing diversion programs that treat people for problems of addiction and mental illness. Such programs offer an alternative to incarceration and are designed to address the recidivism that plagues the mentally ill and the addicted. Activists also call for an end to for-profit policing, which uses fines, often imposed on poor people, to finance municipal governments, and to arrest quotas as a way of evaluating police performance. But such changes, however overdue, would not reduce the number of people already in jail. Toward this end, the Brennan Center for Justice at NYU recently proposed a Reverse Mass Incarceration Act that would provide $20 billion over ten years to offer incentives to states that reduce their prison population by at least 7 percent over a three year period.
A noteworthy recent development that suggests the kinds of proposals put forward by the movement may be gaining traction even in unexpected quarters is the recent creation of Law Enforcement Leaders to Reduce Crime and Incarceration, a group of 130 police chiefs, prosecutors and sheriffs that includes the police chiefs of New York, Chicago, Los Angeles, Houston and Philadelphia. Remarkably, many of their proposals echo those of Campaign Zero and Building Momentum from the Ground Up. Specifically, the group calls for the development of alternatives to prosecution for the addicted and those suffering from mental illness, the reduction of the number of crimes on the books, the downgrading of some non-violent felonies to misdemeanors, and the reduction (and in some cases the elimination of) excessively punitive mandatory minimum sentencing laws. In a striking departure from the ideologies that for decades have dominated official discussions of crime, the co-chairs of the group proclaim: “we need less incarceration, not more, to help us do our jobs and keep all Americans safe.” Though barely two-years-old, the new civil rights movement is clearly having a discernible impact.
Lynching, the Death Penalty, and the Lessons of History
Ending police killings and reversing mass incarceration are audacious goals, and those struggling to achieve them face formidable obstacles. For altering practices that have such deep roots is not simply a matter of introducing new policies; it is, at bottom, a matter of changing the boundaries of the morally permissible. Two historic movements — the battles against lynching and the death penalty — show that practices once taken for granted can, under sustained moral assault, begin to crumble.
Lynching has a long history in the Unites States, but escalated sharply in the 1880s as part of a larger fight to restore white supremacy in the post-Reconstruction South. The first reliable statistics on lynching begin in 1882, and they show an average of 67 African-Americans lynched per year between 1882 and 1890. But lynching’s high point came in the 1890s, at the very time when Jim Crow laws were imposed throughout the South. The peak year was 1892, when 161 African-Americans (out of a total of 230) were lynched — an average of more than three every week. Lynchings also became more racialized during this time. Though mobs also lynched whites, Mexicans, Asians and Native-Americans, blacks constituted an ever-growing proportion of victims — 44 percent in the 1880s, 72 percent in the 1890s and 89 percent between 1900 and 1909.
In 1892, as lynching reached its highest point, a movement to fight lynching emerged. At the forefront of this movement was Ida B. Wells, a crusading journalist and teacher, born into slavery, who was enraged by the death of three of her friends at the hands of a lynch mob. Wells responded by publishing in her Memphis newspaper an investigative report on lynchings that concluded that the belief that blacks were lynched because they had sexually assaulted white women was a myth and went on to make the claim — an explosively provocative one in the 1890s South — that those sexual liaisons between black men and white women that did take place were more often than not consensual. In response, a mob destroyed the offices of her newspaper and Wells, facing death threats, moved to Chicago.
But Wells continued the struggle, speaking to groups in New York and taking two tours of Europe to campaign against lynching, and the movement she had helped initiate continued to expand. Then, as now, women played a particularly prominent role in the movement. The 1890s saw the creation of two anti-lynching organizations, the National Association of Colored Women’s Clubs and The National Afro-American Council, and in 1909 the just-founded National Association for the Advancement of Colored People (NAACP) joined the fight against lynching. Despite the movement’s growing momentum, and the cooperation of a growing number of white allies, progress was slow and uneven. Though an anti-lynching bill was finally passed in the House of Representatives in 1922, it was defeated in the Senate by a filibuster led by Southern Democrats. Twice more anti-lynching bills made it through the House, only to be blocked again in the Senate. Between 1890 and 1952, seven Presidents petitioned the Congress to pass an anti-lynching bill; none succeeded. Meanwhile, attempts to prosecute those responsible for lynchings proved futile.
Yet progress, albeit painstakingly slow, gradually became visible. Though repeated efforts to pass federal legislation failed and attempts to use the legal system to combat lynching proved ineffective, public opposition to lynching continued to grow. What the movement — operating through speeches, demonstrations, plays, films and journalistic exposés — accomplished over time was to make lynching morally anathema. With the lynching of African-Americans increasingly defined as a source of national shame, it gradually declined. Still common in the first half of the 1920s as the influence of the revived Ku Klux Klan soared, lynching took the lives of 198 blacks between 1920 and 1924. But as the Klan declined in the late 1920s, so did the number of lynchings, dropping to 73 in the last five years of the decade. More than half a century of struggle would be required to effectively eliminate lynching, but by the 1960s lynching was largely a relic of the past.
With the lynching of African-Americans increasingly defined as a source of national shame, it gradually declined.
Though the death penalty has not been quite as targeted at blacks as lynching, it has nonetheless been imposed on African-Americans in vastly disproportionate numbers. In both the nineteenth and twentieth centuries, a narrow majority of the more than 13,000 people executed in the United States have been African-Americans. The pattern has been even more pronounced in the South, where data going back all the way to America’s colonial era showthat blacks constitute over two-thirds of those executed in Alabama, Virginia, North Carolina, Mississippi, South Carolina, Louisiana, and Georgia. Even today, the race of the victim is still very much a factor in determining who gets executed; though whites constitute about half of all murder victims, they are the victims in three-quarters of murder cases that lead to execution.11
The imposition of the death penalty reached its height in the 1930s, averaging 167 executions a year and reaching its peak at 197 in 1937. But the atmosphere changed after 1945 in the wake of the horrors of World War II and the Holocaust, and Western societies, including the United States, came to rely less and less on the death penalty. By the 1950s, the number of executions had dropped to an average of 72 per year, and in the 1960s a frontal legal assault, with the NAACP’s Legal Defense Fund in the forefront, was launched against the death penalty.12 At the same time, public support for capital punishment waned, reaching an all-time low of 42 percent in 1966. Finally, after a cessation of all executions starting in 1968, the Supreme Court in 1972 issued a ruling, Furman v. Georgia, that suspended the death penalty nationwide. After decades of struggle, it appeared that the forces calling for abolition were victorious.
But movements sometimes suffer historic setbacks, and the victory of the abolitionists proved short-lived. As the center of gravity of American politics shifted and the Supreme Court moved rightward, capital punishment was restored, albeit with greater legal restrictions. Executions resumed in 1977 and rose through the 1980s and 1990s, reaching a modern-day peak of 98 in 1999 — the highest number in almost half-a-century. In the mid-1990s, in the context of a recent crime wave, as many as 80 percent of Americans stated that they were in favor of the death penalty for a person convicted of murder.
Much as Black Lives Matter drew attention to the cause by publicizing particular cases of police killings, the movement against the death penalty has in recent years focused attention on particular cases where people on death row had been wrongfully convicted and subsequently found innocent. At the same time, legal challenges to the scope of the death penalty have been filed. Step-by-step, capital punishment became more narrowly circumscribed; no longer eligible for execution were the insane (1986), children under 16 (1987), the “mentally retarded” (2002), and teenagers under 18 (2005).
Extra-judicial killings by the police … now number more than four times the number of people lynched or executed by capital punishment in the worst of years.
The death penalty still exists, but USA Today recently described it as on “life support.” Last year, just 35 people were executed in the United States; this year it will almost certainly be fewer than 30 — the lowest number in 21 years. Since 2007, New Jersey, Nebraska, Maryland, Illinois, New Mexico, New York and Connecticut have joined the 12 states that had already banned the death penalty. Though capital punishment is still on the books in 31 states, only nine of them have executed a single person in the last three years. To be sure, it would be rash to conclude that the death penalty is definitely on the road to total abolition. But it is no exaggeration to say that, in the seven decades since the end of World War II, the movement against the death penalty has saved hundreds, and perhaps thousands, of lives.
Extra-judicial killings by the police, the all-too-common practice that ignited the current movement, now number more than 1,100 per year — more than four times the number of people lynched or executed by capital punishment in the worst of years. But street executions by the police, unconstrained by due process or any of the legal safeguards that limit capital punishment, are unlikely to be abolished — not in a country with more than 300 million guns in private hands, more than 11,000 homicides per year and 50 or so killings of law enforcement officers annually. Police killings can, however, be radically reduced, as can the number of people confined to prison. The task of the current movement — like the movements against lynching and the death penalty before it — is to challenge, with patience and unyielding pressure, the boundaries of what is morally acceptable and to ensure that the struggle for racial equality continues its long march forward.
1. The Washington Post counts only fatal shootings by on-duty police officers, while theGuardian counts all police killings, including those people killed by tasers, police vehicles, and in custody.
2.This is an extrapolation from The Guardian’s “The Counted,” which reported 957 police killings as of October 31st, 2015. At the current rate, there will be an estimated 1,149 killings in calendar year 2015.
5. Personal communication from Professor Harry Levine, Queens College, City University of New York, July 1, 2015.
6. Some cases, however, were still pending.
7. Franklin E. Zimring and Brittany Arsiniega. “Trends in Killings Of And By Police: A Preliminary Analysis.” Ohio State Journal of Criminal Law, forthcoming.
9. These figures are based in an estimate derived from The Guardian of about 300 police killings of African-Americans annually out of a black male population nationwide of roughly 20 million.
10. For an illuminating discussion of the human costs of mass incarceration, see “Who Pays? The True Cost of Incarceration on Families.” Oakland, CA, September 2015.
12. Calculated from Chris Wilson. “Every Execution in U.S. History in a Single Chart.” Time. 24 July 2014.