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March 5, 2015

Race & criminal justice: Lessons from Ferguson

Riot policemen

In police-citizen relations, the past cannot be ignored, David Harris told an overflow crowd Feb. 25 at the latest Reed Smith lecture from the School of Social Work’s Center on Race and Social Problems.

“With race and criminal justice, we are never writing on a blank slate,” Harris said. “There is a history, and it counts, every single time.”

In introducing Harris, who is a distinguished faculty scholar and professor of law, former city councilman Sala Udin called him “the preeminent police researcher [and] leading national authority on racial profiling.”

Harris began outlining his topic, “The Collision of Race and Criminal Justice: Lessons From the Aftermath of Ferguson,” by showing images of protests in this Missouri town following the killing of unarmed black teen Michael Brown by white police officer Darren Wilson. Police in military-style protective gear aimed weapons at crowds of civilians with their hands in the air, and faced off with police dogs against people carrying signs saying, “I am a man.” Harris then flashed similar photos from 1960s civil rights protests.

police dog“How far have we come?” he said. “We have come a long way but not nearly far enough. We have to be farther along than this.”

Harris pointed out that local police departments had been front and center in the enforcement of runaway slave laws and segregationist edicts in the South.

“This was American policing, lest we forget,” he said. “So I have to ask — who was the genius who brought the dogs to Ferguson? When I saw this in August, I thought, oh my God. People don’t understand the history they are dealing with.”

Even FBI director James B. Comey has admitted that the past still was overwhelming current relations between law enforcement and the public, Harris noted, when Comey told a Georgetown crowd on Feb. 12: “First, all of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups. … One reason we cannot forget our law enforcement legacy is that the people we serve and protect cannot forget it, either. So we must talk about our history. It is a hard truth that lives on.”

Harris said, “I almost fell off my chair” at the nation’s top law-enforcement officer’s unusual acknowledgment of this issue.

“If there’s one thing we can do,” Harris continued, “we can make lessons about that history part of police training.”


The single most frequent question Harris is asked, he said, is why more police officers are not arrested, tried and convicted for misconduct.

Blame the law, he said.

“Police in the United States have a privilege to use force,” he explained, “that is necessary to do their jobs [and] reasonable and proportional in the situation.”

While other citizens under suspicion of committing violence must prove they acted in self-defense, for police the question is only, Did you use excessive force?

“The way that is defined favors the police,” Harris said.

“Prosecuting these cases turns out to be devilishly difficult,” he added. “With most jurors, they are going to accept a story told by police. They are going to think the police are the good guys.” Trying to prosecute a police officer is “going against the dominant narrative. You are starting [from] behind.”

Prosecution of police is never easy because it falls to local prosecutors to handle such cases.

“Prosecutors and police in your county are on the same team,” Harris said. “I am not saying that they collude.” But prosecutors depend on police as their main witnesses in many cases. “That naturally makes for a reluctance to prosecute their local folks.”

Nor are federal prosecutions of police easy to secure. Those prosecutors must prove not only that an officer employed excessive force under state law but that he or she deprived the victim of civil rights under federal law, which has “among the highest burden of proof,” he said.

Such federal cases are “among the most difficult cases to bring and even more to win.” Between 2002 and 2011, he said, there have been 9,000-12,000 such cases a year investigated by federal authorities, but these have resulted in only 30-40 indictments a year — “not because they are bad prosecutors and not because they are in bed with police” — and a mere 15-20 convictions per year.

One possible alternative to local prosecution is for states to create independent statewide prosecution units. Two years ago Wisconsin created a state agency to undertake investigations in possible law-enforcement indictments, but still left prosecutions to the local district attorney’s office.

“It’s not working out so well, because they only went halfway,” Harris said.


Grand juries, empaneled to decide on indictments in the most prominent cases, do not provide a likely remedy in cases where cops may face charges, Harris said. The grand jury in Ferguson, for instance, brought no indictment against Officer Darren Wilson.

While grand juries were designed centuries ago as a way to keep prosecutorial zeal and politics in check, in 20th-century America they took on another function: “They … became a sword, a weapon of investigation,” especially against such things as organized crime and, in another era, Communism and so-called subversives.

Today, “the prosecutor decides everything that happens in front of the grand jury,” Harris said. The DA presents only evidence that supports indictment, and may recommend the charges a jury should levy. There are no defense lawyers present, nor, usually, the defendant, who may be invited to testify but usually is kept away by defense attorneys.

None of this is illegal, because grand juries are only deciding whether there is probable cause to bring charges, not guilt or innocence.

However, in the Michael Brown case, when the grand jury was considering whether to indict Darren Wilson, the prosecutor put all the evidence in front of the jury, including defense witnesses, starting with Wilson himself. The prosecutor also offered no direction for indictment.

“It’s not illegal to do what he did — but it is highly, highly unusual,” Harris allowed. “And the disparate treatment is what tells you this was not right. You want justice? Show me the justice everybody else gets. Somebody got special justice.”

Harris believes all the attention to Ferguson may not be fruitless. He predicts that the current federal investigation of Ferguson police will result in government officials threatening to sue the department unless they accept a consent decree to make certain changes in procedures, as the Pittsburgh police experienced in the 1990s. (At press time, the Department of Justice was set to release its assessment of Ferguson police.)


Harris favors police wearing body cameras to film their encounters with civilians, and is helping Pittsburgh police today formulate their camera-use policies. He cites a Rialto, California, study in which police officers in the same shift, with the same assignments and duties, were divided into two groups — those donning body cameras and those without. The cameras were mounted on officers’ sunglasses, the same style Pittsburgh police will deploy. Citizen complaints against Rialto police who filmed encounters were 88 percent below the other group, while the use of force among the camera group was 60 percent below the control group.

“There’s no way to know whether any other police department would get numbers this dramatic,” he said. “But if we get numbers any closer to this, it could be a game changer … you put a camera on people, they behave better on both sides.”

Cameras may even help police improve their training methods, he said.

Still, he cautioned, cameras are not a cure-all. He cited the case of Eric Garner, who was arrested on a Staten Island sidewalk last year for allegedly selling loose cigarettes. Asking to not be arrested, Garner was taken to the ground in a chokehold, which had been banned by New York police, while protesting “I can’t breathe” more than half a dozen times. Garner died on the scene.

All of this was captured on video by a bystander, but police involved were not indicted for any crime. “You all saw the images and it made no difference,” Harris said. “It all turned out the same as in Michael Brown. Cameras don’t change the … use of force law” — or whether a local DA wants to try the case, how jurors see police or how prosecutors use grand juries.

“But they create an unparalleled record of a situation … And that’s not nothing.”


“If there’s one thing that police departments would or could do,” he concluded, they should “build relationships between police and the people they serve …  It’s at the heart of what we call community policing.

“You want to have effective public safety, you definitely have to have these relationships … before the tragedy, not afterward. Before the bad feelings, not afterwards.”

A black woman in the audience asked Harris: “How do you have a reasonable expectation that civilians that look like me are going to engage or want to have relations with police, when we know the history? What expectation do you have that folks would buy in?”

“I don’t have the expectation that [this] would happen easily or quickly,” Harris replied, “but you have to have people on both sides who want that progress. In a way it’s an act of optimism” to work toward better police-citizen relations, he added. “But if we don’t do it, we won’t end up better than we are now. And where we are now is not tolerable.”

Most of the images Pittsburgh has seen of new Police Chief Cameron McLay show him going to community meetings and talking to the public, Harris pointed out. “He’s building those bridges, trying to build them back up, and he’s trying to encourage his officers to do the same.

“This has to be done now. There is no police department in the country where I would not go in and say the same thing.”

—Marty Levine