74% of Americans believe the death of George Floyd is a sign of a broader problem. Americans have become more aware of the harsh and unfair treatment of people of color at the hands of the police. The indefensible murder of George Floyd was a flash point that exposed police brutality in the most clear and shocking way. White Americans now understand that police are more likely to use harsh tactics with black people and that Ferguson and the death of Eric Garner were not isolated incidents.
This growing condemnation of harsh policing, especially when it comes to black Americans, is partly the result of more people of all backgrounds and skin colors collaborating with each other at work, in casual social situations, in the military, in colleges and universities. We also have a celebrity culture that reveres athletes, actors, and actresses of all backgrounds and skin color. It matters that we had a black president who ran the country extremely well, especially in contrast to the abysmal job Donald Trump is doing. Our global world has brought us closer together, interacting with multicultural colleagues with a wide variety of skin tones. And, equally important, cell phone video content taken at the time of any incident supplies evidence to the world at large making it impossible to cover up or hide what really happened as was frequently done in the past.
Anyone who has had multicultural interactions and experiences in life understands that skin color is just that- skin color. It should have nothing whatsoever to do with how you are treated as a human being. But in this country for far too long, it has been dangerous to be black while driving, black while jogging, black while bird watching, black when encountering police in any context. This baked in prejudice has been our shameful legacy for 400 years. It was totally unacceptable before but now we are at a tipping point. The difference is that white Americans and Americans of all ages have joined Americans of color across this country to rise up and get into the streets for peaceful protests against police brutality. This weekend protests are going on even in small cities across America. When our friends and family are treated unfairly by people in authority, it’s personal, no longer abstract.
Our Broken Policing System
As a prosecutor in state court in Philadelphia in the 1970’s and in Chicago in the 1980’s I witnessed a broken judicial system that had an authoritarian mindset.
As a former social worker turned prosecutor (an unusual background for a prosecutor) I had a different sensibility compared to many other prosecutors. I had come from a world of social service workers who cared about nurturing, supporting, being empathetic and helping many of the very same people that the criminal justice system vilified, put down and disrespected.
I quickly learned that many policemen I prepped as witnesses for preliminary hearings and trials had become very cynical and cruel over the years after seeing so much on the streets that they told me had damaged their faith in human beings. Many of the police I worked with had become tough and mean. Some of them came to the job of policing with a chip on their shoulders, probably from being mistreated themselves by abusive parents.
All too often police were certain that a defendant of color should be punished even they were not sure they had arrested the right offender. I would hear rationalizations from the police: “Look, even if this mope didn’t do it this time, he probably did a lot of bad stuff before.” Extensive rap sheets for petty crimes added to that belief that this person deserved to be punished whether or not he committed THIS crime.
It was obvious the system was broken. Many defense attorneys had developed cozy relationships with the judges they appeared before. At first, I was shocked that state court judges would hand out lighter sentences based on whether a private defense attorney represented the defendant. Time and again private counsel (as opposed to public defenders) were able to get their clients lighter sentences or probation given the same evidence. It had to be clear to anyone working in the system that it was rigged to keep already disadvantaged defendants at a greater disadvantage in life.
It was demoralizing to be part of a system that was so clearly unfair and had so few alternatives to prison as a solution. Almost everyone participating in the justice system was damaged by it from the victims of the crime (usually other members of the community where the defendant lived), to the defendants, to the police, the courtroom personnel, to the irritable, ornery judges. Everyone was caught up in a hopeless, dysfunctional morass that was into demeaning, further damaging and punishing people instead of helping them to change their lives for the better, treating them with fairness and investing in their potential for a future that would be far better not only for the defendant but for the community at large. I thought then and still think that the police should be trained as social workers. Our authoritarian approach to policing promotes brutality. Trump has an authoritarian mindset. As long as he is in power, authoritarian policing will continue.
Why There is Hope
At the time I worked as a prosecutor I did not know what could be done to change the culture of systemic racial injustice. But since then I have learned about restorative justice, community policing and many other ideas that work to shift the culture of policing. I no longer think the problem is hopeless. When the Obama administration left office, they left the Trump administration a valuable playbook based on years of research about how to implement 21st century policing. The guidebook is chock full of good ideas and suggestions. The Trump administration has totally ignored that manual just as they ignored the handbook on what to do in case of a pandemic. https://www.nytimes.com/2020/06/04/opinion/police-reform-obama-task-force.html
As Barack Obama said this past Wednesday, we can get out that 21st Century Policing Manual and get busy right now implementing the ideas in there. Mayors and lawmakers could take action immediately with (to name just a few ideas) de-escalation training for police, community policing, and re-thinking bail (which all too often keeps poor defendants in jail pending trial condemning them to continued poverty including loss of jobs and a record that keeps them from getting future work).
Given the rising tide of outrage and energy we are seeing in America, I have never had as much hope as I do today that much can be done to fix our 400 year old problem of systemic unfairness to people of color. But…there is a catch. Trump and his enablers have to be voted out and the military cannot enable Trump to stay in office if he loses the election.
How Trump is Using This Moment to Test the Military
Trump has trampled on the Constitution and many long established norms before in his presidency, and has been rewarded. He has not only evaded expulsion from office, but grown in power and capacity to get people to carry out his orders even when they are suspect or illegal. Trump asserts control over as much of government as he can and eliminates anyone who will not play along. Now, I think, Trump is testing the military to bend this institution to his will and see if he can get it to help him achieve his ultimate goal of staying in power even if he loses the election.
Trump’s use of brute force to clear his path to get a photo op in front of St. John’s Church where he held up a bible as if it was a Trump steak, that unnecessary force against peaceful Americans exercising their first amendment rights in the nation’s capitol, was, I think, a dry run and a test of loyalty for the military. He got General Milley and Mark Esper to accompany him in that walk across Lafayette Park. Gen. Milley ducked out before the photo was taken. But Esper got caught in that shameful photograph that will be discussed by historians in years to come, assuming we can hold onto our democracy.
That use of force against protesters to get a photo op was the last straw for many retired military leaders, causing them to finally speak up: General Mattis, Admiral Mike Mullen, John Kelly, (former Chief of Staff), General Martin Dempsey, General Douglas Lute, General John Allen, General Anthony Thomas, Admiral Stavridis, Admiral McRaven. The fact that so many are speaking up and pushing back on Trump is a hopeful development.
There are also many discussions going on behind the scenes right now in the military and at the Pentagon about what should happen if and when Trump gives them an unconstitutional order. Mark Esper and Trump are the only two people who have the power to issue orders to the US Armed Forces. It is important that yesterday Esper pulled armed forces out of Washington, D.C. against Trump’s wishes, asserting his will over Trump’s and responding to the request of the DC mayor.
The Tipping Point
The systemic change we need can happen only if the Trump administration is expelled and the GOP-led Senate flips blue. Trump, Barr and his enablers are using these mainly peaceful protest marches to achieve their own political ends, trying to scare Americans and use that fear to get Trump re-elected as a law and order president, wanting protests to be violent so that they can build a case to derail the election. Winning is their only goal. Democracy could be the casualty.
I hope that Americans are onto Trump.
Trump wants to be seen as a Nixonian law and order president protecting white America from scary people of color. But this is a different era. In 1968 Nixon won election as a law and order president, but he was not an incumbent. Trump cannot pretend that he is an outsider when it come to the mess he has created in 3 1/2 years of his presidency.
More important, white Americans of all ages are marching alongside black Americans in the streets of our cities. That did not happen in 1968. That is why I have hope.
What will happen next?
Trump’s election in 2016 brought out women across the country to protest with massive women’s marches not seen before in our country. That agitation and energy was transformed into political action- the result was the 2018 election that flipped the House.
The next election needs to flip the Senate and regain the presidency.
Biden has responded to this moment in our history by moving left of center and looking to FDR as a role model for policies he will support and implement. Biden has been meeting with Elizabeth Warren and Bernie Sanders and others. These meetings have resulted in policy positions that are more left of center than any presidential hopeful in the history of our country. Biden has also been speaking out and his words are the words of the leader we need. If Biden has the energy of younger Americans behind him, he will win in November.
I am hopeful now in a way I have not been before that not only is the younger generation motivated, but multi-generational activism has been ignited. Protesters must maintain peaceful protests despite many right wing groups and criminal elements that are coordinating damage and looting. Protesters cannot play into Trump’s hands by allowing violence to mar their message and fuel his.
This organic energy is our country’s best hope to defeat Donald Trump in November.
Trump and the GOP must lose and lose REALLY BIG. There can be no question about who wins the next election because Trump will take advantage of any uncertainty to claim the election was stolen from him. He will claim that anyhow, but if it is a massive loss in the Electoral College, he will not succeed in holding onto power because the military will follow the constitution.
The 20th Amendment of the Constitution says that on January 20th at noon, the president and VP who have lost the election are no longer in power. At noon on January 20th the president and VP become regular citizens. The newly elected president and vice president assume the power of all our government agencies at that moment, including the power to command the military. If Trump fails to leave the White House, he could be ordered to leave the White House and expelled as a trespasser by the police.
General Mattis understands that danger we face as a country and he has spoken out against Trump at long last.
Here are excerpts from General Mattis’ remarkable statement: