What we have to lose with Trump: Criminal justice and fair policing

Four years ago, Donald Trump asked Black voters, “What have you got to lose?” As a professor focusing on criminal law and someone who has fought for civil rights in the courts, it is clear to me that Black folks lost a lot.  

The list of losses for criminal law is long. At the top of the list is the loss of federal oversight of unconstitutional policing practices. Equally as bad, we “gained” Trump’s toxic encouragement of an unlawful police force. Instead of a president who investigates police misconduct, we have one who encourages it. Trump also has stood in the way of meaningful legislative advances, like those in the George Floyd Justice in Policing Act.

Read More: Trumps says ‘more white people’ are dying from police violence than Blacks

The hallmarks of Trump’s criminal policies are the same as what defined so much of his presidency. He has embraced white nationalism, misconstrued data, and engaged in cronyism, and the result has been a parade of horribles and an increase in hate crimes. Unidentified federal forces snatching people off of the street during Black Lives Matter protests. Leniency for friends like Roger Stone, but a blind eye to racial injustices that could be addressed through a presidential pardon. The return of the death penalty for federal crimes, notwithstanding the death penalty’s historical racial disparities. And, unhealthy prison conditions, especially post-pandemic, affecting a population that is almost 40% Black.  

Particularly at this moment, we see the consequences of Trump’s focus on militaristic and machismo policing. This is a person, who as president, encouraged police officers to be rough with people they arrest and to shoot protestors. He even refuses to admit that lethal police force is a racial issue, despite the fact that Blacks are killed by police at a rate more than twice that of whites.

Trump’s words are, in and of themselves, dangerous. Even worse, his policies reflect his words.  

Trump’s Department of Justice eliminated restrictions preventing police departments from obtaining military equipment. The Barack Obama administration imposed the restrictions after the deployment of heavily-armed police in Ferguson, Missouri after the killing of Michael Brown. Unsurprisingly, history has repeated itself in several cities this summer, stoked both by Trump’s irresponsible rhetoric and policies.    

While Trump chose to send federal officers to cities to police protestors, his Department of Justice has taken a hands-off approach to investigate systemic constitutional violations, like excessive force, in local police departments. The hypocrisy is apparent. His administration claims that it is overreaching for the federal government to investigate local unconstitutional police practices (even if a city invites the federal government in). But, it is okay for the federal government to insert itself into local policing (even when the city asks the federal government to leave).  

In contrast, President Obama’s Department of Justice opened 25 investigations into law enforcement agencies. These investigations resulted in 19 agreements reforming law enforcement agencies, including court orders requiring independent monitors for police departments in Baltimore, Chicago, Cleveland, and Ferguson after the police-caused deaths of Freddie Gray, Laquan McDonald, Tamir Rice, and Mr. Brown.  

The agreements include provisions requiring community engagement and specifying guidelines for stops, searches, use of force, and policing at political demonstrations. They certainly are not cure-alls, but research has shown that independent monitors reduce fatalities caused by police officers.  Consent decrees also provide models for reform for other police departments.

Read More: Protesters injured by police before Trump photo-op testify: ‘It hurts’

In addition to walking away from police oversight, Trump has been a barrier to legislative reform. This summer, he countered the Congressional Black Caucus’ George Floyd Justice in Policing Act with watered-down proposals. If we turn the question around and ask what Black voters have to gain in November, one answer (with a few Senate seats) is the passage of the act.  

That would mean: 

• A national database of officers who engage in police misconduct. This type of database could have saved Rice’s life.  He was killed by an officer who had been forced out of another police department.  

• Financial incentives for states to appoint special prosecutors to investigate police killings, like the appointment of Minnesota Attorney General Keith Ellison to investigate the killing of George Floyd.

• Financial incentives for states to ban the type of no-knock warrants that led to Breonna Taylor’s death.

• The end of qualified immunity as a defense in a lawsuit against an officer who violated someone’s constitutional rights. A prior court decision making clear that an officer’s conduct was unconstitutional would not be required. 

• A requirement that federal agents only use deadly force as a matter of last resort.  

• Restrictions on the federal government’s transfer of military equipment to local police departments.

• Mandatory reporting by police departments of the use of deadly force.  

Black voters have everything to lose again this November. Policing –– literally a life or death matter –– is at the top of the list.    

Alvin Bragg is a visiting professor and co-director of the Racial Justice Project at New York Law School and a candidate for Manhattan District Attorney.  He previously was a federal prosecutor and the Chief Deputy Attorney General for New York State. Follow him on Twitter at @AlvinBraggNYC.

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