The Hard Conversations We Need to Have to Stop Police Killings

A protest of the Ferguson shooting verdict at City Hall, November 2014. Photo by Victor Fiorillo

Charles Hamilton Houston, the venerable stalwart of the Howard University School of Law and mentor of Justice Thurgood Marshall, famously remarked that a lawyer is either a social engineer or a parasite on society.

While inundated with the fusillade of phone vibrations that every black person experiences whenever a fellow member of the African diaspora becomes a hashtag, Houston’s mantra nagged at me incessantly.

I felt more like a bloodsucking parasite and less-like the soon-to-be president of the Barristers’ Association of Philadelphia, an organization for African-American attorneys in the Philadelphia region. The frustration was paralyzing, as it has been, I imagine, for every African-American with a conscience since the death of Trayvon Martin. Since then, we’ve been force-fed a daily diet of viral violent black death at the hands of individuals associated with white institutional power. My frustration was caused by a simple question: What are we supposed to do now?

My experience with police-involved homicides is personal. My best friend, Stephen “Stevie” Henderson, was killed by a police officer in 2013. His son, Saige, is my godson. He is my favorite person in the world. Saige is a straight-A student who plays the cello and enjoys basketball, football, Encyclopedia Brown, and soccer.

The day Stevie was killed, I was employed as an assistant district attorney here in Philadelphia. I went to work the next day distraught, but encouraged. Imagine the awkwardness: I spent the day in court surrounded by police officers wearing the same uniform of the man who killed my best friend. Fortunately, I considered many of the officers I worked with good friends and they even offered condolences.

I dreaded my next responsibility. I had been charged with informing Saige of his father’s death. A good friend, a career prosecutor, recommended that Saige and I read “The Fall of Freddie the Leaf.” Her advice was a godsend. We also discussed how I would help Saige understand that not all police officers are bad people.

I didn’t need much inspiration. I was surrounded by great cops every day. I grew up with many of the cops I worked with. I even developed relationships with officers who had patrolled my own Cobbs Creek neighborhood when I was a less-than-decent young man. These same officers took my story back to Philly’s neighborhoods, hoping to inspire other rebellious young men to follow in my uncommon footsteps.

Unfortunately, there were also some very bad Philadelphia police officers. As a prosecutor, I suffered the privilege of reporting what I believed to be numerous instances of police corruption and brutality to the Internal Affairs Bureau and my District Attorney’s office supervisors. Sadly most, if not all, of those officers are still policing our streets.

With all of my knowledge and experience, some gained during my years standing on corners in West Philly, the rest gained standing in courtrooms in Center City, I sat in my office and at home, reflecting. I wondered how could I help. What could I do? Or am I just a parasite?

I settled on my city. How can I make sure that Philadelphia is an example for the country? How can we reduce the number of conditions that contribute to this epidemic of police-involved homicides? Let me be clear — police-involved homicides of black men (and everyone else, for that matter) are an outcome. These deaths are the consummation of numerous individual, societal, and government-induced conditions that, at their zenith, create a time-bomb within the holster of every police officer. These conditions are exacerbated in the black community by racial disparities and bias.

The question isn’t “why” do these things happen in most American cities. The African-American community has been telling America “why” for centuries, only to be rebuked with differing revelations of “All Lives Matter,” “He shouldn’t have resisted,” or the outdated but comparable “Slaves, obey your earthly masters with fear and trembling” (Ephesians 6:5).

The question isn’t why. It is more a question of “when?” If our community leaders and elected officials fail to take corrective measures, frustrated American citizens will likely come looking for them with pitchforks and torches, much the same way they came for Anita Alvarez, the shamed and ousted former state’s attorney of Cook County, Illinois.

The question then becomes: What do “we” need to do to fix this problem? While many of the changes require action in elected office, I hope to explain the sort of dialogue everyone, regardless of race or occupation, should be having when attempting to defuse this bomb.

First, we have to stop the criminalization of poverty – specifically African-American poverty. Poor people have fewer rights than other people. That is a problem. Obviously, there is no law that says “police can arrest poor people 10 times as frequently as they arrest others,” but practically, that is the case.

For example, in Philadelphia, there was a proposed ordinance that prohibits “underage panhandling.” The intent, of course, was to do good. Many “inconvenienced” and “annoyed” drivers were tired of the discomfort that accompanied children as young as 7 or 8 years old approaching their cars at busy intersections to solicit money.

As a social justice advocate, I was aghast. Who would enforce this ordinance? I already knew the answer. This well-intentioned legislation instantaneously turned poor children into the subjects of police scrutiny. Even more frightening was the idea that only the poorest children in our city are likely to be on the streets soliciting money, often for sports club uniforms or similar causes. Why would we subject these children to additional adversity?

How far do you have to stretch your imagination to see this unfolding horrifically – a confused and understandably frustrated child confronted by an officer. The child may run. The child may resist and be arrested. Even more upsetting is that this could end with Black America’s phones wildly vibrating – sharing another hashtag following the death of another child, à la #TamirRice.

This is one critique of broken-windows-theory policing, which is the strict enforcement of quality-of-life crimes. The broken-windows theory exponentially increases the number of police encounters, and as a result, the number of police-involved homicides. These dragnets, which are all too often justified with a citation to the racist misnomer “black on black” crime (Italian-on-Italian mafia crime is labeled “organized”), do nothing to reduce the conditions that cause poor people to commit serious violent crimes. So why do we do enforce the law this way? The answers are 1) it looks good on paper, and 2) quality-of-life offenses are often new crimes created to criminalize conduct by unpopular groups. Groups like poor black children who panhandle at busy Philadelphia intersections. Contrast this ordinance with the number of ordinances prohibiting firefighters from fundraising at intersections in the same manner. There are no ordinances prohibiting this activity – everyone loves firefighters.

Combine the criminalization of the poor, the gargantuan police presence in communities of color, and broken-windows-theory policing, and you can see what Justice Sonia Sotomayor warned of in her recent dissenting opinion in Utah v. Strieff: “We … risk treating members of our communities as second-class citizens.”

Second-class citizens do angry things to their perceived oppressors. For example, in 1773, second-class citizens in Boston had a tea party. They destroyed an entire shipment of English property and sparked the American Revolution. Britain lost America for treating members of its communities as second-class citizens. Similar protests in Ferguson in 2014 demonstrate the risk, and costs (almost $6 million in a city with an annual operating budget of $14 million), associated with subjugating citizens.

By advocating for the decriminalization of poverty and demonstrating the increased risk and costs of over-policing communities of color, Philadelphians will advance the ball.

The next thing on our community to-do list is the reform of the police oversight and disciplinary process in Philadelphia.

Bad police officers are rarely a secret in a police department as large and diverse as Philadelphia’s. Unfortunately, the current disciplinary system and police labor contract maintain easily exploited loopholes that many bad cops manipulate to their advantage.

This topic is far too technical to describe briefly, but there are several areas you should familiarize yourself with to understand the need for change. Google is your friend.

• Pennsylvania’s Act 111, which mandates private labor contract arbitrations, should be amended to create an arbitrator-selection process that is more transparent and responsive to community concerns. The act should also mandate public arbitration hearings.

• A city or state agency should be created to independently investigate and prosecute allegations of police misconduct and police-involved homicides.

• The City of Philadelphia should fully fund its Police Advisory Commission and force the Police Department to comply with the commission’s subpoenas.

• The City of Philadelphia must negotiate away the notoriously defunct Police Inquiry Board and arbitration process. It should be replaced by a more transparent and conflict-free process.

Of all the issues I feel the need to address concerning police oversight, I believe the most important is the protection of good police officers so they can report misconduct, brutality, and corruption, without fear of reprisal. In fact, measures should be taken to 1) incentivize internal reporting of police misconduct and 2) criminalize the failure to report the same.

As you would expect, officers have the best vantage point when it comes to police misconduct. Police officers who report misconduct are often shamed and isolated. For instance, officers who are perceived as “snitches” fail to receive profitable overtime assignments, are skipped over for coveted positions and promotions, are transferred to less desirable working assignments, and, worst of all may find themselves in situations where fellow officers are less willing to assist them when they are in trouble.

In other words, snitching has consequences when you’re a cop – and given the current disciplinary system, it is highly unlikely that “snitching” will even result in discipline. This is unmanageable, and at its worst is dangerous to the public and individual officers.

I mentioned that I personally made a report to the Philadelphia Police Department’s Internal Affairs Bureau during my time in the District Attorney’s Office. The day after providing my report, the officer who was the subject of my complaint walked into the courtroom I was assigned to and loudly called me a “fucking snitch.” I understood the risk of a leak before I made my complaint, but the leak’s swiftness surprised even me.

When I complained to a few officers I trusted about the situation, they affirmed my concerns. They explained that they were often afraid to “snitch” because it would spread through the department like wildfire. All too often, young officers with dreams of working in the department’s revered Highway Patrol Division or working to take down drug cartels with the DEA and FBI were so severely punished for reporting misconduct that they either quit, accepted that they would never advance in the department, or “got down with the program.”

This is unacceptable. Every Philadelphian should demand that bogus protections for bad cops are removed from the city’s contract with the FOP next year, and the city needs to make whole those officers whose careers are derailed after coming forward to report misconduct.

My last point involves the importance of returning police and the criminal justice system to their proper place. Police have replaced counselors and social workers in schools. Prisons have replaced proper mental health care and drug treatment. The wisdom of judges has been replaced by legislation sponsored by those who profit from prisons.

The war on poor people of color, veiled as the “War on Drugs,” devastated the education and human services sectors in America. Correctional officers in counties far away from Philadelphia earn a living wage guarding Philly’s high school dropouts while our city’s teachers, counselors, school nurses, and social workers drive Uber to make ends meet.

We should treat what ails impoverished communities the same way we treat other public health crises. I’ve often compared the failures of the criminal justice system to a doctor who immediately treats his patients who are at risk for cancer with aggressive courses of chemotherapy.

The basic premise behind chemotherapy is that the powerful chemicals, which cause serious and life-altering side effects, will kill the fast-growing cancer cells a little bit quicker than the treatment kills the patient.

And that’s largely the premise of the contemporary criminal justice system, too. Mass incarceration and heavy-handed policing are meant to stamp out crime, but too little attention is paid to what those strategies are doing to city neighborhoods as a whole.

We should advocate for the proper diagnosis and treatment of what ails the community instead of handcuffs, Tasers, and homicides. There is always funding available to police and imprison poor communities – but rarely the same certainty when it comes to the resources needed to improve the quality of life for those most likely to be policed.

Some cancers can only be tamed with chemotherapy. But doctors use it judiciously, meting out only what is needed to stop the cancer. We all prefer, and pray for, a cure. That same approach should guide policing strategies in Philadelphia and nationwide. Aggressive policing may be the only recourse in some cases, but they should be used as judiciously as possible. The criminal justice system will not fix poor communities with handcuffs.

What will fix poor communities are quality and equitable educational opportunities, expanded re-entry programs, drug and alcohol treatment, increased resources for individuals experiencing mental health crises, and the cessation of the school-to-prison pipeline.

This isn’t work for police officers. It should be left to the experts — the teachers, the social workers, the mental health professionals, the counselors, and the members of the affected communities.

Just think, an elementary school in Collingswood, New Jersey, recently called the police after a 9-year-old made a racist comment about brownies. An officer arrived, gun on waist, and questioned the third-grader about his comments. A strong and unwarranted dose of chemotherapy.

I hope these recommendations serve as a starting point for conversation and as a guide for those who believe #BlackLivesMatter.

Kevin Harden, Jr., is a former Philadelphia prosecutor who now defends corporations and individuals in white-collar criminal investigations, civil and commercial litigation. In September, he will become the president of the Barristers’ Association of Philadelphia, an organization for African-American attorneys in Philadelphia. He is also chair of Philadelphia magazine’s diversity advisory group.