There has been a sea change in law enforcement over the past decade. The same country whose local and federal governments failed to bring charges against the police officer who choked Eric Garner to death not only saw local officials successfully prosecute Derek Chauvin for George Floyd’s murder, but also watched as the federal government convicted his three fellow officers for failing to intervene.
In April, Connecticut’s newly created Inspector General arrested a trooper for the 2020 killing of a 19-year-old. In June, prosecutors in Michigan filed charges against the police officer who shot Patrick Lyoya. Then in August, the Justice Department indicted the police officers who killed Breonna Taylor. Progress has generated pushback – most notably the recall of San Francisco’s district attorney, Chesa Boudin – but it has also been sustained.
The problem is that most of this progress has focused on holding police officers accountable. While this is important, it is also insufficient.
The notion of accountability fails when the legal system itself is unjust. Police accountability will not address the fact that the United States imprisons more people per capita than any other country. That’s more per person than not only other democracies, but also more than Russia, China, Iran or any other authoritarian regime in the world.
A more just system requires that we address the policies – and not just people – that drive the worst outcomes. To do this, we need to extract law enforcement from some of its current entanglements. Local government can this and there are two easy places to start –-drug enforcement and traffic stops.
Despite the “war on drugs” rhetoric of yesteryear, drug enforcement has always been a farce – driven more by context and circumstances than by a commitment to putting drug users and dealers in jail. I first saw this at a concert as a teenager where middle-aged white people lit up marijuana in plain view of police officers and with no consequences. I remember thinking that these would be the easiest arrests an officer could make, if we actually thought marijuana use was criminal conduct that was seriously concerning. Indeed, concerts, college parties, and Wall Street would all be prime targets for drug busts if prosecuting drugs were a priority. But it has never been about the drugs themselves.
Drug prosecutions fall on Black American and lower income Americans disproportionally. Connecticut data shows how this plays out among municipalities. Drug use spans race and class. If laws were equitably enforced, the arrests for drug violations would be fairly constant across communities.
However, according to the Connecticut Department of Emergency Services and Public Protection, arrests for drug offenses accounted for 6.5% of all arrests in Connecticut in 2020. But, in the cities, these percentages were much higher. They accounted for roughly 25% of all arrests in Bridgeport and Stamford and a whopping 40% of all arrests in New Haven. And this occurs despite the fact that the public overwhelmingly thinks drugs should be handled as a public health- and not criminal law – issue.
Similarly, some police departments use traffic stops as a pretext to fight against drugs and guns – stopping cars in higher crime neighborhoods for valid traffic infractions (because we are all, always, committing traffic infractions) and using that as an opportunity to sniff out weapons or contraband.
Traffic stops are the single most common interaction between the police and the public. Like in the case of Jayland Walker in Ohio, they can also be fatal for motorists.
Between 2016 and 2021, police officers killed 400 unarmed motorists who were not being pursued for violent crime. These pretextual traffic stops are an inefficient way to uncover other crimes. A study in Connecticut found that car searches following routine traffic stops produced contraband in less than 7% of vehicles – and most of the time that contraband was marijuana. The study found that investigating illegal activity directly is much more likely to produce evidence of crimes. Moreover, using traffic stops to “generate” probable cause to search cars only seeds bad will in the communities that get over-policed.
A better way would be to remove police from road enforcement altogether. There is no need for police officers to issue traffic tickets. Traffic violations can be curbed through urban design, automated cameras, or unarmed personnel like those who issue parking tickets.
This is where local cities can forge their own paths. Just as we accept federal and state restraints on law enforcement’s right to conduct searches without probable cause, local authorities can put their own policy curbs on police use of traffic stops or investigations of drug crimes.
Many local police departments choose not to participate in the enforcement of immigration laws – some based on notions of justice, others based on a self-interest in garnering the trust of local immigrant communities. Similarly, local governments can choose not to enforce federal or state drug laws. Nothing obligates our cities and towns to put their money toward criminal enforcement of these laws. Indeed, some Connecticut jurisdictions choose not to put money into law enforcement at all. In continuing to use our scarce resources in these ways, we are throwing good money after bad, fighting an antiquated war on drugs that the public does not want, and breeding distrust amongst our citizens.
But a public raised on the idea that the police are necessary for safety has to be convinced these actions will not put it in danger. Cities can use this opportunity to focus on violent crime. There were 25 murders in New Haven in 2021; there were no arrests in 22 of those cases. Rather than prosecuting drug crimes, the police should investigate these cases.
Cities can also pass ordinances aimed at regulating gun trafficking and violence, focusing their local police departments on those efforts – and only those efforts. Granted, these are much harder crimes to investigate. They take time and labor. They are particularly onerous in Connecticut, which has no grand jury system and thus does not have prosecutors who can issue subpoenas to help conduct extensive investigations. However, local police commissions do have subpoena power and they should be enlisted to help their departments carry out impactful, anti-violence investigations.
Moreover, whereas enforcement of state and federal narcotics crimes comes with long prison sentences, enforcement of city ordinances have much lower penalties; a shift away from drug enforcement will help bring down our bulging prison population. While stiff sentences may sound like a powerful law enforcement tool, they aren’t. Indeed, they are actually counterproductive to public safety. They are also costly – both in money and human life.
Even August Vollmer, often referred to as the father of American policing and a problematic figure in his own right, argued that the police should not be charged with enforcing traffic violations or combatting substance abuse. Rather, law enforcement should focus on criminal conduct. We would be wise to listen.
For the criminal legal system to truly be a justice system, it needs to be reimagined. We can start doing this at the local level. We should do this now.
Liam Brennan is a member of the Connecticut Mirror’s Community Editorial Board.