One does not need to survive a police encounter

A week or two ago, in light of shootings of officers by civilians and civilians by officers, the Waterbury Police Department held an informational community meeting. The goal was laudable; the talk anything but. The session was titled “how to survive an encounter with the police” and the tips from the Waterbury police chief included:

If an officer stops your car, if they ask to search your person or vehicle, if they demand entry into your home, comply and then complain later to the department’s internal affairs office and police chief’s office if you feel your rights have been violated, Riddick said.

This story was picked up by Radley Balko of the Washington Post, who roundly criticized the fatalistic tone of the advice. While others (criminal defense lawyers even) agreed with the Chief and suggested total compliance in order to avoid getting shot, subsequent events showed that even that was not a foolproof tactic.

As a citizen, I take a rather dim view of violence in general, especially violence against police officers whose job it is to protect each one of us. It’s a difficult job and we need someone to do it. As a public defender and criminal defense lawyer, I take offense to the idea that in order for me, as a citizen, to “survive” an encounter with police, I must totally submit and comply with every order they give. With that in mind, the following letter to the editor was submitted to the local Waterbury newspaper and published today. It’s behind a paywall on their site, so I’m reproducing it here:

Letter to the Editor – Response to “Surviving a Police Encounter” Presentation

Last week the Waterbury Police Department held an informational session with members of the community regarding how to survive a police encounter. Undoubtedly tensions between police and the communities they serve – particularly minorities – are at the forefront of our national conversation after the tragic deaths of so many – officers and civilians – in recent weeks. Yet it is extremely irresponsible of the Police Department to frame this issue as “surviving an encounter” with the police, as if every interaction is, if nothing else, presumed hostile and that the police’s natural state is that of aggression and violence and it is the civilian’s fault if police utilize force.

The Department would be well served to remember that they have been hired to protect and serve all civilians, not threaten them into giving up their Constitutional rights in the name of safety. Chief Riddick’s advice to members of the community to consent to a search if requested to do so by an officer is incorrect and dangerous. Chief Riddick is suggesting that asserting one’s Fourth Amendment right to be free from unreasonable searches and seizures can reasonably lead to police force being used against a civilian. There is nothing more contrary to the values of the American democracy than the suggestion that to obtain some temporary safety, we have to give up our liberties.

It is also contrary to the realities of our modern day institutions: the idea that there is meaningful redress for a grievance or complaint later is simply laughable. The reality is that if an individual consents to a police officer’s request to search they have waived their ability to challenge that search in court at a later time. Once certain rights are given up they cannot be taken back. Grievances filed with police departments are notoriously ineffectual. The current system of investigating police misconduct does not work and lacks the faith and support of the community.

Chief Riddick’s comments also highlight the fundamental divide in our communities: there is a lack of trust and faith between the police and civilians. Our police policies and practices have been for so long skewed against citizens of color that the communities are finding it hard to breathe. Police, having suffered senseless violence at the hands of civilians, are understandably afraid and cautious in their interactions. This leads to heightened tensions from both sides and itchy trigger fingers. In order for us to have a way forward, we need to put aside the mindset that police are against the community and vice-versa and instead start to look at this as a collective problem and start rebuilding trust and faith in our police institution by fostering mutual respect. Admonishing citizens that in order for them to “survive” a police encounter, they must surrender their Constitutional rights is a non-starter.


Implicit racial biases are the cracks in the criminal justice system

Just this week, in a case reversing a death sentence because of a judicial conflict of interest, Justice Kennedy wrote that “[b]ias is easy to attribute to others and difficult to  discern in oneself.”

Our country, in the midst of its ongoing national discussion on racial disparity, inequality and bias in the justice system has taken noticeable steps in attributing bias to others. There is no dearth of studies and reports pointing out the iniquities of justice in America: black and minority defendants are 30% more likely than whites to go to prison for the same crimes, for instance.1 in 3 people arrested for drug crimes are black, even though drug usage rates don’t vary widely. These inequalities came to light most harshly through the incidents in Ferguson and New York City.

This disproportionate treatment of minorities in policing continues in the face of contrary evidence. For instance, when stopping cars in Ferguson, blacks were 3.5 times more likely to be pulled over. When stopped, blacks are searched at a higher rate than whites. However, when searched, blacks are less likely to have contraband or weapons on them than whites. Yet, blacks are arrested at a higher rate than their white counterparts. This disparity is not limited to Ferguson, but can be found countrywide, including the “stop and frisk” policies of New York City and the idyllic suburbs of Connecticut.

Studies have also recognized the cumulative impact of racial bias in policing on sentences and further downstream consequences: being arrested more frequently leads to more frequent convictions and that leads to longer criminal records which leads to lengthier sentences, which coupled with a distinct lack of rehabilitative services, leads to higher recidivism. For the same or similar crimes, whites aren’t caught in this toxic dead end loop.

Even for first time offenders, blacks are more likely to get higher sentences than whites. It is no secret that in the criminal justice system, there is a race/gender hierarchy: white women are treated most favorably, followed by minority women, then white men and then there’s a significant gap until we get to the minority men.

There is no “other”

To say, however, that the bias in the racial justice system exists in the “other” is to perpetuate a lie. The system isn’t a sentient machine, chugging along in its own, even thought it may feel so at many times. The system is made up of thousands upon thousands of individuals, most well-meaning and hard-working. Police officers aren’t inherently evil individuals; the judicial branch isn’t a kangaroo court; prosecutors aren’t all lying, cheating and dishonest; public defenders aren’t universally overworked and incompetent.

In fact, most when polled individually would attest to the nobility of their function and the sanctity of their duty. They all believe that they are doing justice – for whom, remains in dispute, but justice nonetheless.

So how does a collective group of mostly well meaning individuals produce such offensive and disproportionate results? The answer, many believe, is that even the best of us are victim to implicit biases.

The idea of implicit bias is that we are subconsciously altering our interactions with other people based on preconceived notions that we are, obviously, unaware of. This is not a case of alleging overt racism in the criminal justice system, which the country has become acutely aware of. This is the other kind: the well-meaning kind.

An Inability to Relate

While the vast majority of defendants in criminal courts are black and Hispanic, the legal profession is overwhelmingly white. Judges are predominantly white. Prosecutors are overwhelmingly white and public defender offices have large white majorities.

The best of us – myself, a minority, included – are affected (or can be) in some way, major or minor, by the stereotypes that our society and pop culture perpetuate. We don’t do this intentionally or knowingly, but we all are the products of our experiences and upbringing and for the most part they vary widely from those of our clients.

Judges who have been raised in white suburbs and attended prestigious law schools and worked in fancy corporate law firms cannot, as much as they try, to understand the circumstances that led the 17 year old black youth with a firearm to stand in front of them. Their sentencing will naturally be colored by their own life experiences and their own beliefs about others’ motivations.

When faced with an individual who looks like them, who has lived the life they have, judges and prosecutors are more likely to find common ground and empathize with the defendant’s predicament. There is no greater example of this than the recent Stanford sexual assault case. While the 6-month sentence for raping an unconscious young woman strikes many as unconscionable, when you compare the judge to the defendant, you get an insight into the rationale. Both the judge and the defendant attended Stanford. Both of them played “suburban” sports: lacrosse and swimming. When the defendant Turner stood in front of the judge, it was easy for the judge to see himself in the young man. It was easy for the judge to sympathize and understand his predicament, because, but for the grace of God…

Yet when that judge is faced with a black youth from an underprivileged background, more often than not he doesn’t have that common ground. It’s all too see for a judge see only the demographic standing before him, not the individual. Falling prey to these biases is how we come to disparate sentences.

The Defense is not Immune

While a significant amount of research on bias focuses on police, judges and prosecutors, it would be foolish to assume that defense attorneys are immune from its effects. Defense attorneys are after all, contrary to popular belief, people. As people, defense attorneys are subject to the same pitfalls as others. But as stewards of Constitutional rights and guardians of individual and individuals’ liberty, permitting implicit biases to affect representation of the accused is especially dangerous. For instance, a study of death penalty lawyers found that they, too, had the same biases as the general population: associating white with good and black with bad.

Recognizing these biases within the defense community and addressing them is critical. Some are asking whether defense attorneys spend less time on black clients. Jeff Adachi, the inimitable public defender of San Francisco, penned a powerful column in the Washington Post, describing his own journey from disbeliever to proponent of implicit bias recognition and training in the defense community.

When a defense attorney is confronted with a client to whom he cannot relate, how is his assessment of that client’s defenses and explanations altered? Do defense attorneys recommend higher sentences because they harbor the same biases of minorities’ guilt? Is there a failure to investigate cases involving minorities because defense attorneys are resigned to their eventual conviction? Do defense attorneys recommend pleas and dispositions to minorities that they wouldn’t to a Stamford swimmer? Do defense attorneys work harder for white clients in order to preserve their better chances at a more successful life and give in to their biased belief in the inevitability of a minority defendant acquiring a felony conviction?

Adachi’s column and the growing body of research in this area aren’t meant to castigate any particular individual or to raise racial bias allegations. They are, however, extremely useful as a gently reminder to all of us that perhaps we need to try harder to recognize that we may unknowingly be treating clients differently based on their race or gender.

A conversation about implicit bias is a difficult conversation; it is a subtle difference away from labeling oneself as racist. This conversation, however, is critical: it allows us to recognize and acknowledge the existence of these biases that would otherwise continue to operate and subconsciously affect our behavior. Admitting that we are subject to these biases allows us to correct for their negative impacts.

Recognizing these biases in ourselves allows us to honestly point them out in others – judges, jurors and prosecutors – and allows us to have the real honest dialogue that will hopefully bring them on board with acknowledging that the entire justice system is skewed and will remain so unless we examine ourselves and the way we treat those who are accused of crimes.

This post originally appeared on NAPD.