Wisconsin Association of Criminal Defense Lawyers

Peter McKeever, Executive Director

wacdl@wacdl.com

P.O. Box 6706 • Monona, WI 53716-6706 • (608) 223-1275 • FAX (608) 223-9329 •www.wacdl.com

June 4, 2020

Wisconsin Association of Criminal Defense Lawyers Demands Law Enforcement Reforms to Address Systemic Injustice and Promote Healing

“A justice system which tolerates injustice is doomed to collapse.”

— Leonard Noisette, quoted in Reducing Racial Disparities in the Criminal Justice System (2000)

American democracy is built on a system of laws. The law can either be an instrument of oppression or reform. Far too often, the American criminal justice system has operated as an instrument of racial and ethnic oppression. Our criminal justice system has permitted and, in some cases, sanctioned racial injustices. The vast and indefensible racial and ethnic disparities that pervade our criminal justice system are deeply rooted, well documented, and evident in all facets of the system. From arrest to sentencing, these racial and ethnic disparities are defining characteristics of our criminal justice.

Last week, the video of George Floyd’s death in Minneapolis shocked and appalled the world. The heartbreaking and disturbing video captures police conduct that is too familiar and typical. In every city, there’s a George Floyd. The city of Milwaukee, alone, has paid nearly $30 million for police brutality settlements since 1958.

However, even in the wake of George Floyd’s tragic murder, numerous individuals in positions of power have continued to deny the existence of systemic racism in America’s law enforcement agencies. It is this continued denial of the recurrent problem of racial bias in our criminal justice system by individuals in positions of power that has rightfully prompted so much outrage and discontent.

Rooting out the systemic racism that is at the heart of so much of the American criminal justice system, and indeed American society at large, requires tangible action. And it requires that action now. It has never been more evident that policing is too important to be left to the police alone. As such, the Wisconsin Association of Criminal Defense Lawyers (WACDL) makes the following immediate demands for criminal justice and police reform:

Transparency. First and foremost, WACDL calls on the Governor, the Legislature, and law enforcement agencies at every level of government in Wisconsin to demand greater transparency and accountability as relates to police misconduct. Transparency about police misconduct is vital to promote improved decision-making in every case. Awareness of prior misconduct can inform every decision point from the initial charging decision, to conditions of release, judicial determinations about the lawfulness of a stop, a search, an identification procedure, or an alleged confession. This information can also affect the ultimate question of guilt or innocence and the appropriate sentence.

Unfortunately, calls for reforms to curb abusive police conduct tend to occur only after a tragic and entirely preventable loss of life happens at the hands of a police officer. That this happens relatively seldom, in comparison with the incidence of ill-treatment, is partly due to the lack of information supplied to the public regarding allegations of police misconduct. Police internal affairs units generally operate as a rule with excessive secrecy.

The public, to whom police departments should be accountable, cannot ascertain whether the police are in fact policing themselves. No longer can law enforcement agencies continue to permit bigotry, narrow-mindedness and racism to flourish throughout their ranks by shielding officer misconduct. Law enforcement now more than ever needs to reassure the public that internal investigations are thorough and fair.

If the argument is that it is just “a few bad apples,” then let the sun shine in so that the public – those the government is meant to serve in this democracy in the first place – can know the truth. Too often that is not possible because misconduct complaints against police officers are handled internally and are treated as confidential employment records. Recent history shows that many of these so-called “bad apples” have a long record of complaints – often involving excessive force and racial insensitivity.  WACDL supports legislative action to repeal these secrecy laws wherever they exist and to improve police accountability and transparency.

Good Data. Second, WACDL is committed to developing police accountability databases for the Wisconsin defense bar. In doing, WACDL also calls for state legislation to require statewide data collection on police abuse and misconduct. Data about law enforcement activity is a powerful and effective tool in reforming policing and criminal justice practices. Comprehensive data would allow Wisconsin localities to identify the scope of profiling, disparate enforcement, use of force, and deaths resulting from police encounters and custody.

By regularly providing data to the public on the disciplinary dispositions of all misconduct complaints, it will be easier to identify and address the systemic problems of racial and ethnic injustice in our criminal justice system. These databases are necessary for all stakeholders in the case, including defense lawyers, prosecutors, the judiciary, and most importantly, the people.

By creating and funding ongoing data collection programs, Wisconsin can reward agencies that are reducing racial and ethnic discrimination and abusive policing, identify departments and individual officers most involved in profiling and misconduct, incentivize the development of new, non-discriminatory approaches to policing, and even spur much needed collaboration between police departments and the communities they serve.

Use of Force Standards. Finally, WACDL calls for state legislation to promote training and set standards for the use of force when police officers effectuate arrests or prevent escapes. There is currently no single national standard governing police use of force. Accordingly, while law enforcement is necessarily empowered to use force, including deadly force, when necessary to apprehend suspects and protect public safety, there must be mechanisms to ensure that the force used respects constitutional rights, proportionality, and fundamental respect for human life. These standards must therefore be better defined and enforced in order to limit use of force cases. And if there is to be any justice, these standards must be calibrated to differentiate both between the nature of the offense for which a person is arrested and the measure of force appropriate before an individual is effectively restrained and after. Law enforcement agencies must adopt a culture of accountability and community partnership, implement processes to collect disaggregated data on use of force incidents, and be trained on implicit bias, de-escalation tactics, and procedural justice.

WACDL’s commitment to due process for each and every person suspected or accused of a crime shall never waver, whether it is an individual suspected of passing a counterfeit $20 bill or one who is charged with murdering a detainee in his custody. The very legitimacy of a criminal justice system demands this, in each and every case.

WACDL is committed to promoting the proper administration of criminal justice and encouraging an unyielding concern for the protection of individual rights and due process for all.  Our more than 400 members are committed to promoting a society where all individuals receive fair, rational, and humane treatment within the criminal justice system and to identifying and reforming flaws and inequities in the criminal justice system, including systemic racism.

Any denial that systemic flaws and racism afflict our criminal justice system is itself an unwarranted provocation. A commitment to implement tangible and meaningful reform is the only road to reconciliation and national healing.