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Jul 1, 2020
7 Min read time
Success in transforming the criminal justice system will depend on convincing judges to shift how they relate to—and rely upon—police in their criminal courtrooms.
Every time police kill a black person, we look to the criminal courts for some measure of justice. Protesters are often quick to demand—as in response to the murders of George Floyd, Breonna Taylor, and Rayshard Brooks—that prosecutors file charges and that juries and judges convict individual officers.
But to prevent police violence, courts could do more than prosecute and convict. Beyond using criminal law to hold officers accountable after the fact, judges could work proactively to shrink the power and discretion they afford police in the first place. Courts, in short, could play a role in police abolition.
Trial courts must reverse course. Rather than legitimate police authority, they could help to reduce police power through an abolitionist approach to court norms around policing.
Over the last several years, despite numerous protests, courts have repeatedly failed to prosecute and convict police when they kill. A codependent police–prosecutor relationship, whereby prosecutors depend on good relationships with police to build criminal cases, is partly to blame. Such a relationship makes it professionally costly for prosecutors to bring charges. In the event that an officer is charged, courts often interpret the “reasonable” use of force in ways that protect officers, who act as self-appointed experts on the reasonableness of their own fears.
Meanwhile, more than a thousand people in the United States have been shot and killed by the police every year since 2015—a leading cause of death among young African Americans, Native Americans, and Latino men. Prosecuting individual officers through the courts has not solved this crisis.
At present, trial courts throughout the country mostly bolster the function and authority of police. As I document in my book Privilege and Punishment, police work is often left unchallenged in the routine processing of cases. Prosecutors rubber-stamp police behaviors in their charging decisions, and judges rarely question whether there was probable cause for an arrest. Judges frequently deny defense motions to suppress police evidence, and defense attorneys have learned to expect as much. Moreover, judges tend to view the testimony of a police officer as more credible than that of a community member or an alleged offender.
Courts are not merely complicit, though. They actively rely on the police through the issuance of warrants, effectively enlarging the scope of police activity. When defendants don’t show up for court dates, judges mechanically issue bench warrants for their arrest, even for minor crimes such as trespassing, loitering, or failing to appear for jury duty. Police also rely on the court’s active participation in the issuance of warrants to collect evidence in criminal cases. When Taylor was shot dead by police in her home, it was a “no-knock” warrant—signed by a judge—that granted police the legal authority to enter her home without warning.
Trial courts must reverse course. Rather than legitimate police authority, they could help to reduce police power through an abolitionist approach to court norms around policing—or, the way court officials interpret Fourth Amendment jurisprudence. The Fourth Amendment is meant to protect civilians from unreasonable searches and seizures and the use of illegally obtained evidence, but the Supreme Court and lower courts have authorized all sorts of police practices that ordinary observers would find unreasonable. As a start, judges could reduce or eliminate warrants in certain cases, question police evidence, and write opinions that expose police misconduct, bias, and self-serving interpretations of “reasonableness.”
Judges tend to view the testimony of a police officer as more credible than that of a community member or an alleged offender.
Abolition, as scholars and activists have articulated for decades, is a praxis that strives toward a society where police and prisons are no longer necessary. Scholars such as Angela Y. Davis and Ruth Wilson Gilmore have shown how police and prisons have historical connections to slavery and continue to function as tools of racial social control. Abolitionists seek to transform society into one where we no longer rely on punitive institutions to deal with social problems or harms, such as substance use, assault, or homelessness. Investments in health care, housing, education, and food security, they advise, would more effectively reduce such problems.
For some abolitionists, the courts—especially the criminal courts—are just another feature of the prison–industrial complex, and the end goal is to do away with them. But courts have, in certain periods, presented possibilities for transformation. Abolition is a long-term process, and legal claims in court could be used to support abolitionist goals, as Dorothy Roberts writes.
The road toward a world without police and prisons will likely be paved with strategic, short-term reforms. In the words of Dan Berger, Mariame Kaba, and David Stein, such “non-reformist reforms” can seek to “reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.” For Dylan Rodriguez, the difference between reformism and abolitionism has to do with the end goal. He writes, “while liberal-to-progressive reformism attempts to protect and sustain the . . . coherence of an existing system by adjusting and/or refurbishing it, abolitionism . . . raises the radical question of whether those relations must be uprooted and transformed.”
Whether criminal courts themselves should ultimately be “uprooted,” transforming their institutional norms could begin to dismantle policing. Abolishing police through the courts means upending courts’ relationships to police. Rather than serving as an institution that bolsters police authority, courts could question, critique, and unmask policing as the crisis it is. Such a transformation would help to “shrink the state’s capacity for violence.”
Court officials—especially judges—must be compelled to take the lead here. In criminal trial courts, defendants rarely prevail in suppression hearings, where they seek to litigate issues of unconstitutional conduct by officers. This is because judges give immense deference to police, especially if the officers in question—no matter how suspect their search and seizure practices are—have obtained evidence that an alleged offender engaged in illegal behavior.
Judges must instead be willing to intervene and push the limits of Fourth Amendment jurisprudence. Although constrained by doctrine, judges can act as authors, managers, and rule-makers in their courtrooms, transforming the way the law understands the scope of police power in the processing of cases. They can signal to defense attorneys that pursuing suppression motions—which many defense attorneys are eager to do but often worry may irritate judges—will not be viewed as a waste of the court’s time. Through the record these motions leave, judges can produce “systemic facts” that shed light on corrupt and racist police behaviors—both individual and programmatic. In addition, judges can reduce police presence in communities by refusing to sign “no-knock” warrants and ending the practice of issuing bench warrants for failures to appear. Such tactics are within trial judges’ discretion. In civil actions for monetary damages and instructions to juries in criminal cases, judges could be more critical, and exacting, in their determination of what counts as “reasonable” use of force.
As a result, police would at once be asked by courts to do less work in communities of color and would be institutionally interrogated when they do. They may feel less emboldened to engage in misconduct in the collection of evidence or in the filing of “boilerplate” reports. Criminal caseloads would likely shrink, reducing the court’s own contribution to mass criminalization.
Judges can reduce police presence in communities by refusing to sign “no-knock” warrants and ending the practice of issuing bench warrants for failures to appear.
Organizers could hold courts accountable to these new institutional norms, while working on abolitionist community alternatives, such as peacemaking programs, which focus on developing non-punitive avenues toward restoration and repair between a harmed person and the person who harmed them. Court watching, which involves attending public court hearings and taking notes on court officials’ actions, is one way ordinary people are already monitoring and critiquing court norms.
In the wake of Ferguson, a movement emerged to elect so-called progressive prosecutors across the country. A similar movement to elect and nominate state judges sympathetic to an abolitionist reading of the law—judges who strive to reduce the imprint of police and prisons in U.S. society—could shift norms at the state level, where the bulk of police work finds its home. More than half of states elect trial court judges, and judges who are appointed can be swayed by political pressure and activism.
Transforming trial court practices in relation to police could be part of the struggle toward abolition. Doing so will not fully eradicate state-sanctioned police violence or mechanically shift resources toward marginalized communities, but it is a critical tool in the abolitionist toolkit.
… in May, COVID-19’s disproportionate impact on Black Americans—coupled with the police killing of George Floyd—sparked a moment of racial reckoning. Articles such as this one reflect Boston Review’s commitment to combatting racism—from publishing strategies to end police violence to amplifying Black voices. Long before mainstream publications focused on racial justice, Boston Review provided one of the major forums for these discussions with seriousness and subtlety. We remain committed to the belief that race has a central place in any discussion of justice, democracy, and citizenship. Join us in providing free, open spaces for these conversations by becoming a supporting reader of Boston Review today.
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