Racism in policing? How to level the judicial playing field

A major reason that deep policy problems in society are difficult to solve is because the solutions offered tend to be 1) hopelessly overlarge and vague, 2) hopelessly small and inconsequential, or 3) hopelessly sidetracking the issue. All of these tendencies were in operation at a recent American Civil Liberties Union forum at the University of Minnesota Law School about racially biased policing in Minneapolis, Ferguson, Mo., and beyond.

The hopelessly large solution put forward was to undo racism in policing, if not in the entire society. However laudable that goal, the means of achieving it were not offered beyond training programs about bias and vague calls for "community policing."

Hopelessly small solutions included removing from police forces the few individual cops who are the source of the problems or requiring officers to live in the city where they work (even though courts have already prohibited that). That complaints and disparities are rampant across the country belies that this is a problem solved by culling individuals locally.

The sidetracking issue was the argument that black-on-black violence is a big problem. Yes, it is. So is black-on-white violence, white-on-white violence and white-on-black violence (see Charleston). None of it has anything to do with ethical and community responsive policing.

As the director of a nonprofit that seeks to improve upon present practices, I am held by foundation funders to a much higher standard for matching a solution to a problem. If my organization proposes to do A, why does that lead me to predict that B will result? Once I implement A, how will I study the development of B and report back? Needless to say, if B does not happen and I don't have a good explanation or modification at the ready, the funding will end.

So if policymakers were held to this meaningful level of accountability, I would recommend they try a pilot project in which a community impacted by the police response to an alleged crime better directs the criminal justice outcome than is currently the case. How? By moving closer to the constitutional roots of having a jury of one's peers.

Juries — which formally have the right to nullify laws and make whatever decision they want — are very consciously instructed in a manner contrary to that ideal. (Lawyers are forbidden to let juries know.) They are convened from within judicial districts, of which Minnesota has 10, with Hennepin and Ramsey counties each being single-county districts. Any courtroom observer in the Twin Cities can plainly see a huge racial gulf between most of the defendants and most of the jurors.

In essence, a key reason that many African-Americans find the criminal justice system racist is not just due to the disparate results but by its very operation. Persons who don't share their daily environment or historical experience determine their fate — both in jury composition and in writing the laws that juries are told they have no choice but to apply.

Therefore, a not-too-large, not-too-small and not-sidetracked solution is to: 1) allow defendants to require that juries come from the same legislative district where the alleged crime was committed, which in urban areas is much narrower than the whole county; 2) instruct jurors that they are responsible not only for determining whether evidence of a law having been broken has been presented beyond a reasonable doubt but whether or not a conviction should result if it has, while allowing the state or defendant to propose alternative resolutions; 3) pay jurors more so it is not a hardship on a community if jury duty becomes more frequent in certain districts.

Such a solution would allow neighborhoods that are most affected by crime and the justice system to make their own decisions about whether the harm in enforcing drug laws outweighs the benefit; whether police who claim to have been obstructed by a defendant they put in the hospital are credible; how to weigh the benefits of removing guns from the street against the costs of "stop and frisk" aggressiveness; how strenuously to insist that evidence is supported by body or squad cameras; which expressions of "disorderly conduct" require a conviction and all that entails; and how, or if, the problem of intraracial violence is best responded to with criminal justice measures.

Instead of relying on hand-picked community advisers or constantly defending against self-selected critics, the police would have a true crowdsourced feedback loop about what is really wanted and expected of them. This would bring neighborhood influence back to policing in a truly democratic manner.

We can implement this with minor changes to court processes, study it for a few years and see how it works. Or we can keep having interesting discussions that pose large, small and sidetracked solutions while nothing fundamentally changes.