Legal scholars analyze criminal justice system’s role in upholding racial discrimination

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“We shouldn’t have to celebrate as African-Americans when we get a piece of justice like today. We shouldn’t have to celebrate and parade when an officer is held accountable.”

So said L. Chris Stewart, an attorney representing the widow of the Atlanta man Rayshard Brooks, on June 17. The exact same day saw prosecutors bring murder charges against the city police officer who had fatally shot Brooks in a Wendy’s parking lot.

Brooks’ death at the hands of law enforcement — like the deaths of George Floyd in Minneapolis and Breonna Taylor in Louisville, Kentucky — strengthened ongoing calls for an end to police brutality and systemic racism in the U.S.

Keith Findley, an associate professor at UW Law School who teaches courses on criminal procedure, believes it’s the criminal-justice system’s very foundations that allow for both practices to continue.

“The criminal-justice system is a system that is built upon a culture and a history steeped in racial discrimination,” Findley said. “That discrimination is going to seep through and is going to be reflected in the operation of the criminal justice system.”

The current standard governing the use of force in the U.S. is the Supreme Court’s decision in Graham v. Connor, Findley said. The court ruled in the case that claims of excessive force by law enforcement should be analyzed under the Fourth Amendment’s objective-reasonableness standard. Findley said the court had intended to set a constitutional floor with the ruling, not best practices or standards for law enforcement.

“Unfortunately, though, law enforcement and policymakers throughout this country have taken this floor and treated it as a ceiling as if that’s the most they can do to regulate police use of force,” Findley said. “That’s really a misunderstanding. We should look at it truly as a floor and build on that by more restrictive guidance of police.”

Gov. Tony Evers and Lt. Gov. Mandela Barnes introduced a package of criminal-justice reforms on Juneteenth Day that would, among other things, set statewide standards for police use of force and require every agency to have a use-of-force policy that’s published online.

Findley said it’s difficult to write rules for every situation, but he believes the legislation is a step in the right direction.

“This would be good for police as well as communities of color because it would help the police officer understand more specifically what’s expected and what’s acceptable,” Findley said. “Nobody wants police in a situation where they have to resort to physical force, sometimes deadly force, to resolve a dispute with a community member.”

Police protections

If a police officer does employ excessive use of force, it’s difficult to hold him or her accountable, said Teressa Ravenell, a professor of law at Villanova University who teaches about civil rights litigation and police conduct.

“Criminal law is seldom a way to obtain justice in cases of police brutality and violence,” Ravenell said during an American Constitution Society webinar about institutional racism in the criminal justice system.

Civil law provides a remedy, albeit a difficult one. Under 42 U.S.C. 1983, citizens may sue federal officials for money and to try to stop bad behavior. Without a successful lawsuit, though, racist police behavior will go unpunished.

“Section 1983 as a statute is not inherently flawed,” Ravenell said. “Section 1983 is failing because the Supreme Court has caused it to fail.”

Officers who view the Fourth Amendment as a ceiling rather than a floor have been known to stop Black drivers on the thinnest probable cause for suspecting a traffic violation. In the most egregious instances, this can amount to pulling someone over for “driving while Black,” Ravenell said.

If excessive force comes to be used, plaintiffs often have a difficult time proving causation. Ravenell said the courts have dismissed Section 1983 claims even when there is proof that an officer violated someone’s constitutional rights.

“To win a Section 1983 case, the plaintiff must prove a person was personally responsible for the constitutional violation, but it’s impossible to prove this when officers refuse to testify against each other out of loyalty and fear of retaliation,” Ravenell said.

Even if a plaintiff can prove a claim, an officer can still put forth a qualified-immunity defense. Courts often defer to the U.S. Supreme Court’s qualified-immunity doctrine, which provides protection to all but “plainly incompetent” officers. Yet, despite widespread support for eliminating this defense, the high court declined to revisit the doctrine on June 22.

Rethinking roles

Findley said individual judges nonetheless can correct bad police behavior and racial discrimination in the criminal justice system. This can best be done by using case law to establish the legal standards governing what police can and cannot do. At the same time, individual decisions can unfortunately lead to system-wide racism.

“The cumulative effect of the decisions made by judges across the state have a disproportionate racial impact,” Findley said. “Judges need to be more cognizant of the impact that their decisions have on setting up the rules of the game that permit racism to be perpetuated.”

Findley said all actors within the criminal justice system need to learn about implicit biases and inherent racism, and make race and the system’s discriminatory effects acceptable topics of discussion when people are being charged with violating the law.

William Sulton, a trial lawyer at Gingras, Thomsen & Wachs specializing in civil and constitutional rights, believes police departments should dedicate part of officers’ annual continuing-education hours to training people about racially biased policing and the use of excessive force, as well as ways to avoid these faults. Yet another subject of emphasis should be the importance of honesty in criminal investigations into police conduct.

He said prosecutors, county district attorney’s offices and the Wisconsin Department of Justice should also be involved.

“Prosecutors play a critical role in being the gatekeeper from police abuse,” Sulton said. “We should strongly consider enacting statutes or policies throughout our state that require a prosecutor to review (excessive force) decisions because it’s an opportunity to educate police officers on the law, on policies and on concerns that attorneys have.”

And it’s not just prosecutors who have a role to play. Solving the complex problem of systemic racism will require help beyond the police and criminal justice system, Findley said.

“This is an indictment of all of us,” Findley said. “Every one of us is racist, and we really need to work hard to create institutions to overcome that.”