February 23, 2022

The Federal Responsibility to Promote Police Reform; And What Seating a Black Woman on the Supreme Court has to do with it.

Jelani Jefferson Exum Dean and Philip J. McElroy Professor of Law, University of Detroit Mercy School of Law

This time of year—with Black History Month followed by Women’s History Month—turns our gaze toward scholars, advocates, and thinkers who fit one or both of those identities, asking their thoughts in this moment. As a Black woman and a Black mother, few topics grip me as more important than addressing the use of excessive police force in a long-term, impactful manner. The threat of police violence hovers as a constant, threatening cloud covering Black peoples’ everyday lives. “Living While Black,” forces us to navigate our days’ journeys while too often presumed punishable, permeating how we talk to and prepare our children to face the world. Headlines and social media splashed with hashtags of the most recent Black son or daughter unjustly killed by police force us to hold our collective breath awaiting verdicts and to suppress our anguish when we hear acquittals or sentencing pronouncements clearly showing that Black lives often do not matter in our justice system. As a sentencing scholar – approaching my work through my perspective as a Black woman – I have come to conclude that policing in America so often operates as punishment that we can only have meaningful systemic change when we couple federal legislative and executive actions with renewed constitutional protections of life, liberty and security. As there is movement by the legislative and executive branches on the federal level to implement police reform, having a Black woman’s perspective on the Supreme Court, and including her unique set of experiences and insights in deliberations, may just be the key to legitimate and workable protections from policing abuses and toward the just treatment of all people under the law.

Unfortunately, our legal system allows, and often even encourages, police behavior that leads to the death of people punished outside of any adjudication of their guilt – a phenomenon I term the death penalty on the streets. From federal programs sending surplus military equipment to state and local police agency SWAT teams to the federally-implemented War on Drugs policies that have led to decades of jurisprudence expanding police power over individuals and their private spaces – the federal government, having helped create an environment that fosters this assault on individual security, must shoulder a responsibility to curb it. Data in recent years reveal that SWAT teams are not typically used for hostage, barricade, or active shooter situations; instead, SWAT teams are deployed, as much as eighty percent of the time, to search someone’s home, often for low-level drug investigations. Unsurprisingly, Black people are more likely to be subject to military-like force during the execution of drug warrants. SWAT teams are more likely to be used in searches and raids targeting Black and Latino Americans than in those targeting white Americans. While SWAT teams and their use of no-knock warrants are but one aspect of excessive police violence that needs addressing, this aspect clearly highlights the need for federal action and constitutional protection. National headlines read that Amir Locke would be alive today were no-knock warrants banned. The same can be said for Breonna Taylor, who was denied justice. In both situations, the tactics taken by police officers were supported by the existence of federal police militarization programs and protected constitutional jurisprudence that focuses a reasonableness inquiry on the narrow moment that a police officer fires at an individual. Amir Locke’s killing came even after so-called reforms to the no-knock warrant policy. Local reforms will not be enough. In the same way that federal incentives and spending policies encouraged the rise in domestic police militarization, federal action must be used to incentivize reform. The George Floyd Justice in Policing Act, a promising reform, would make it easier for the federal government to prosecute police misconduct cases, eliminate qualified immunity for law enforcement officers, ban the use of chokeholds and no-knock warrants by federal officers and encourage states to do the same. President Biden’s promised executive orders address other much needed reforms governing police actions. But any federal action is limited in effect unless constitutional protections within which those reforms exist keep pace with the reality of lived experiences.

Ultimately, if policing is not viewed as punishment and therefore is not limited by the Eight Amendment protections against arbitrary and disproportionate punishment, then even with increased policing reforms, officers who kill may still be deemed to have acted reasonably even when that death could have been avoided. So long as an officer can plausibly claim a reasonable fear for his or her life, the Fourth Amendment jurisprudence upon which the courts now rely neglect the deeper issues of racial bias and ignore the bigger picture of what took place in the encounter just before the killing, including examining what the officer could have done to avoid even getting to that supposedly fretful moment when they decided to pull the trigger. Rather than focusing on human dignity and creating obstacles to the taking of life, as the Eighth Amendment directs, by applying the Fourth Amendment to police force cases, courts have failed to consider the lived experiences that demonstrate that when police officers kill, they inflict punishment that transcends a Fourth Amendment seizure. Black people have experienced policing as punishment for centuries. Black women have carried the sorrow of that punishment for ages. Our perspective brings a realness that has been missing from American jurisprudence in so many areas for far too long.

Police reform is a federal responsibility, and having a Black woman on the Supreme Court can help to protect the promise and longevity of that reform. A Black woman as the newest Supreme Court justice will, of course, be impactful beyond criminal justice issues. Black women have a unique vantage point from which to observe society. Black women have dealt with the challenges presented by being racialized as well as by being gendered. Such experience, perspective, and background allow Black women to connect with diverse matters involving justice, fairness, and equality affecting all members of society. While I cannot be certain that a Black woman will embrace my notion of policing as punishment, I am confident that having a Black woman serving on the Court will enrich deliberations among the justices in ways that will move the Court to discussions more reflective of the lived experiences of all Americans.

As we reflect upon Black History Month and Women’s History Month, it is important to acknowledge that, of course, Black women’s voices are always important and cannot be relegated to two months of the year. However, we do our history a disservice if we do not use these months to amplify the voices of Black women and to promote our perspectives and our impact on history and on our future. I am using my voice to highlight the need for a federal response to police violence. I am using my voice to speak up for the protection of Black lives because they matter. As a justice on our Nation’s highest court, a Black woman will use her voice to speak up for American justice for all, because justice matters.

2022 Supreme Court Vacancy, Criminal Justice, Importance of the Courts, Judicial Diversity, Judicial Nominations, Policing, Race and Criminal Justice, Supreme Court