As more and more incidents of police brutality are captured on film, you might expect them to become less common. But, as one New York public defender attests, the problem has deep roots — and its victims are grimly predictable
Walter Lamer Scott running from city patrolman Michael Thomas Slager in North Carolina in April this year; Slager has been fired and charged with murder after firing eight shots at Scott. Photograph: Uncredited/AP
Τhe images are compelling, true, but they don’t compel due to any great variety. On the contrary, the experienced viewer will detect a certain dispiriting sameness almost from the outset. The only aspect that truly changes is the accompanying data, though this is mostly irrelevant detail.
A boy (relevant detail: 12 years old) stands in a park’s playground, until a police car pulls up and an officer immediately – within two seconds – shoots and kills him. A man slowly exits his car at a gas station. A state trooper asks to see his licence, and after the man turns and reaches into his car to retrieve it, the trooper shoots him multiple times at close range; the shooting victim wonders aloud, “What did I do, sir?” A burly undercover officer delivers a vicious right cross flush to the face of the thin, handcuffed woman who just extended her foot toward him. His follow-up kick misses.
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An overweight man in a chokehold – whose face we’ve just seen forcefully being ground into the pavement despite his protestations that he can’t breathe – now lies limp on that sidewalk surrounded by officers who seem more concerned with bystander proximity than any fatal medical emergency. Filmed from a helicopter, a horse thief (of all things) is Tasered into prone immobility then beaten severely by eight officers; one of them starts things off with a kick to the man’s groin before another gets a running start, as if fearful of missing out, to contribute his own kick to the man’s midsection.
A woman surrounded by police at a precinct while being processed for a public-drunkenness arrest is suddenly thrown down face first after protesting her treatment. Now unconscious, her eviscerated face lies in a pool of her own blood. A man pitifully jogs away from a police officer who reacts by calmly taking aim then killing the man with multiple shots to the back.
What these images, and many more like them, seem to share is a decidedly warlike timbre – but if so, this is a very one-sided civil war. And a disquietingly disproportionate number of the fallen on the losing side are African American or Latino. Being a New York City public defender, as I’ve been for many years, means dutifully watching the latest footage whenever it emerges. The force of such imagery is undeniable – but it ultimately only does what footage can do. Its viewings are visceral events and as such they disturb, startle and horrify; but in truth they also blend together, and maybe even begin to desensitise. The power of a seemingly unambiguous video can direct a society’s somewhat sustained attention, but in its overwhelming specificity and fundamental superficiality, it is a medium poorly suited to impelling deep thought and well-reasoned conclusions. For that we generally turn to explanatory stories, but here more of that depressing, almost predictive, sameness often emerges. The narratives that are desperately shaped to compete with this nascent species of images may be doomed to fail, but at least they can adhere to an accepted formula.
First comes the smear campaign, in which any misdeed or criminal past, no matter how minor, is pored over with revelatory glee. Then we will be told that the officer involved feared not just for his safety, but for his very life. The harmless object in the victim’s hand? It looked like a gun. It looked like a gun – to someone very familiar with guns. The story will also report lots of furtive and aggressive movements, of violent resistance to arrest. In many cases, police reports are filled out – under penalty of perjury – attesting to these facts; but those facts are then flatly contradicted by what everyone can see with their own eyes. Officers are caught on tape manipulating evidence or rehearsing improvised fictions. The familiarity feels as if it can’t be coincidental, but is more like the product of selections from a playbook – one that undoubtedly proved more effective before smartphones and CCTV became so ubiquitous. And finally, there is the most salient sameness of all: like a prolific movie studio specialising in one particular genre, the greatest police brutality videos – in number and quality – are produced in the US.
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Maybe American police brutality feels especially noxious now because it seems less the work of unhinged rogues and more like something systemic. Consider the evidence provided by a new Guardian project, The Counted, which this week found that black Americans are twice as likely as white Americans to be unarmed when killed during encounters with police, with Hispanic and Latino people similarly victimised. It also found that the number of ethnic minority people killed by police is far out of kilter with their proportion of the population. Consider Baltimore, and Ferguson, and many other examples besides.
It’s a subject that no one in my line of work can escape. Being a public defenderentails not just watching the videos, it means being obliged to pick up where they leave off, to see what can be done. It also means getting roped into a lot of discussions about crime and punishment, and whatever happens to be at the forefront of those arenas at the moment, in the same way that being a novelist makes people think you must have an opinion on their favourite author. The difference is that my opinions on criminal justice rarely offend anyone because – unlike my literary ones, which tend to belligerence – they have a palpably defeated quality. In fact, this is a not uncommon difference I’ve noticed between civilian and public-defender reactions to unmistakable police misconduct: shock and outrage by the civilian, a kind of jaundiced weariness from the public defender. The reason is that shock and outrage rely partially on surprise, and I’ll here presume to speak for the vast majority of big-city public defenders in the US and say that when US police act savagely and indefensibly, it’s not all that surprising to us.
This is not to say that the civilian shock is somehow inappropriate. It seems genuine. It could, at least theoretically, spur change. The problem is that the shock is insufficient to that task, and also emblematic of the deeper problem: ignorance. One could even quibble with the under-informed sensibility that is offended by an isolated example of the powerful abusing the weak, when an honest global flag would probably feature a clenched fist distorting a passive face. For once, the old refrain of “this is supposed to be America” can seem apt – when a country that never tires of touting its opportunity and freedom can simultaneously produce what looks a hell of a lot like state-sponsored subjugation.
It’s not too difficult to ascertain when US policing began to go wrong, or at least more wrong. In the late 1970s – an era not known for its pacific law-abidingness – US prisons and jails held fewer than 500,000 inmates. Today that number is more than 2.25 million. Recently a great deal of brilliant and desperately needed work has been done to expose and deconstruct this astonishing development, or rather devolution, which has come to be called “mass incarceration”.
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To simplify, this rabid increase has not been organic. Americans did not suddenly decide en masse about 30 years ago to start violating the law in far greater numbers, leaving law enforcement no choice but to flood our cells with antisocial miscreants in order to protect the innocent. The first clue that this is not what happened is the steadily significant drop in violent crime during this time. A rational expectation to that drop would have been a dramatic decrease in the incarcerated population, rather than the explosive increase that occurred, which today makes being a public defender more about your ability to deal with a crushing volume of damaged humanity than anything litigious. (Nor can it bepersuasively argued that this explosion in the number of inmates is somehow responsible for the decrease in crime.)
The real explanation is that the US undertook a concerted programme to redefine and greatly expand law enforcement’s role in society through an unjustified distortion of the concept of criminality, and an illogical recalibration of what conduct merits incarceration and how much it warrants. The relative subtlety of these factors, along with an almost purposeful mass delusion, have combined to make mass incarceration a largely invisible phenomenon. Much more difficult to unsee, however, are the devastating side-effects of the program, visible whenever an unarmed teen is killed or a rock is thrown at the protest organised in response.
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Still, old conceptions die hard. In my experience, financially stable citizens’ most prevalent conception of the police is that they’re something like officials at a sporting event. They are there in case an infraction occurs and, if so, to address it punitively when necessary. This conception may have a high degree of accuracy where it is formed, but the reality is that a great many other US police officers are more like a football referee who’s been told pre-game that he must give out four red cards in the ensuing match, regardless of what actually occurs during play.
Those struggling in poorer communities know this reality all too well, and the more miserable the setting, the greater the knowledge. These people feel themselves the prey in a profoundly unenjoyable game in which every law enforcement officer is judged not on his or her ability to serve and protect their community, but rather on how many members of that community they can lock up. What is prized is not judgment or intelligent compassion, but brute force and the continual replenishment of that abysmal 2.25 million, each a locus of contagious misery for many more besides.
We’re talking an explicit mandate here, but just as toxic are the implicit ones. Big city US police departments today resemble military outfits more than anything else. Military and war tools, tactics and jargon are deployed incessantly, with the obvious consequence that law enforcement officers intuit that they are engaged in a fundamentally aggressive and violent contest with an impossible degree of danger attached. Well, if one of the earliest casualties of war is nuance and deliberation, it’s no wonder that a certain percentage of officers will adopt a siege mentality, within which it may seem to them that the normal rules of moral fairness do not always apply.
The effects are tangible, but at least some are unintended. I speak to the targets of mass incarceration almost daily, and can report that generally their respect for law enforcement is negligible to nonexistent. This is not surprising. Imagine that referee had not only been instructed to give out four red cards, but had also been told to give them all to the same team. Now imagine that team’s reaction. Being targeted is horrid, but nothing breeds enmity quite like being unfairly targeted. This is the position of the individual arrested for conduct he rightly suspects is widespread, but which is only vigorously sought out and punished in neighbourhoods like his. That enmity can then easily become self-sustainingly mutual by adding police officers who nurse a huge gap between the respect they feel they deserve and what they actually receive. To deny that this charged antagonism is a direct effect of mass incarceration seems a necessary precursor to reacting with shock to those videos, or the Baltimore ones, or the many other instances where what thrives is precisely what you’d expect the habitat to support.
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This week, Senators Barbara Boxer and Corey Booker introduced a bill that would force states to submit reports of killings like those documented in the Guardian to the Department of Justice. It’s true that the absence of such a record is surreal, but it’s not in itself the answer. The solution is both obvious and radical: far fewer people need to be arrested and incarcerated. Surprisingly, some unlikely mouthpieces are beginning to conclude just that. The radicalism is not intellectual, but logistic. Decades of misguided practice have entrenched a mindset that is like a nefarious alliance between social control and commerce, while demonising the very people who are most victimised and yet powerless to effect change. Maybe the war jargon is apposite after all. It certainly looks like a war – an increasingly violent one with no possibility of a truce, since what matters most is not any particular result so much as its steady continuation. In the meantime, ready yourself for the next video. It will shock and disgust, but it will feel inevitable.
• Sergio De La Pava is a New York City public defender and novelisthttp://www.theguardian.com/us-news/2015/jun/05/the-enemy-is-the-state-how-the-us-justice-system-started-a-civil-war
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