Biden’s Criminal Justice Platform Falls Short
by Anthony Arnold
July 2020
The Qualified Immunity Debate
Since the killing of George Floyd, people around the country have taken to the streets, demanding comprehensive police reform, including addressing and removing qualified immunity, a mechanism that protects law enforcement from prosecution if they commit an offense in the line of duty. And since May, the Biden-Sanders Unity Task Force has been working together to create a series of proposals aimed at and including police reform that satisfies both the moderate and progressive wings of the Democrat party. Earlier this month the task force finally released their results.
Given the current state of affairs, and the national energy backing truly aggressive action, their proposals about criminal justice were anxiously anticipated. So it’s disappointing, if not exactly surprising, that their proposal ultimately falls short. That’s not to say it’s all bad. Ending cash bail, a system that punishes poverty with jail time, is a good step. Likewise, decriminalizing marijuana and making steps to end profiteering from prisons could be first steps down the long road towards reform. There is good to be found.
But, the protests aren’t centered around those things. They’re centered around violence against Black people. On that issue, the proposal represents a missed opportunity. By choosing not to directly address qualified immunity, the task force opted not to tackle one of the cornerstones of a system that makes police unaccountable for committing bad acts.
Instead, they chose to go with this: “Ensure that victims of federal, state, and local law enforcement abuse of power can seek justice through civil litigation by reining in the doctrine of qualified immunity.” This isn’t enough. That sentence is filled with pleasant sounding but ultimately noncommittal language. It’s a suggestion meant to offer Biden a chance to say he’s committed to the cause, without requiring him to do anything.
So here’s a shorter proposal: “Qualified immunity must be ended.”
The History
There can be no room for any other positioning from Biden, or the Democrat party. This legal doctrine, which has been in place since 1967, provides government actors with a broad defense for their actions. When it was established, it was done so on more narrow grounds. In Pierson vs Ray (1967), the Supreme Court established qualified immunity on the grounds that public officials who act in “good faith,” and believed their actions to be within the law, should be protected from frivolous lawsuits.
Fifteen years later the court would expand it further in Harlow vs Fitzgerald (1982). In that decision, the court changed qualified immunity so that it applied, unless a previously issued ruling by the courts had “clearly established” that the precise offense in question was in violation of your rights. So, the “good faith” requirement was out, and even if officials knowingly violated your rights, it no longer mattered.
These two cases, along with Pearson vs Callahan (2009), comprise a trio of decisions that, taken together, give government officials an oftentimes impenetrable shield in civil court.
That protection in civil court is problematic because it’s the only way that victims are able to get financial redress due to government wrongdoing. But due to qualified immunity, and the number of appeals that accompany police misconduct cases, winning such cases is extremely unlikely. This is combined with prosecutor’s reluctance to bring criminal charges against the very police officers they work with on a daily basis. When you combine these two realities together, you end up with the system we have today. Without breaking this chain, there can be no real reform. Everything else proposed will fall short if victims of police violence do not have a chance to win, under the law.
So, if the Democrat proposals don’t address the urgent needs we have, then what should be done?
It’s time to talk with our votes, which is the only language politicians understand. It’s time to force the Democrat party, which claims to be the home for Black people, to embrace actual reform. And if need be, then punish them at the polls. The argument that “Donald Trump is bad” simply doesn’t go very far in this debate. And that’s because what we’re trying to fix is not only much older than him, but also because asking Black people to wait one more day is an act of immorality.
400 Years of Legal Neglect
The American legal system has, for nearly 400 years, been actively working against the best interests of Black people, and should not be allowed to do so for any longer than is strictly necessary to reform it.
The first slave code was established in South Carolina in 1690, as a means of controlling the behavior of slaves and setting up a more orderly system of ownership. Punishments such as nose slitting, branding, and emasculation were codified as approved means of retribution to discourage disobedience. As the New World expanded, and the slave trade grew right along with it, these laws became increasingly strict. After all, slavery was now a crucial lynchpin of the economy, and the means of production needed to be controlled. In 1712, for instance, South Carolina’s slave code was expanded so that children would follow the condition of their mothers, setting up a system of chattel slavery.
Of course, slave codes were not limited to South Carolina. New York’s was known as the harshest of them all, and features this particular law from its expansion in 1702: “Masters may punish their slaves for any misdeed in any way they wish except killing them or cutting off their limbs.” A cruel punishment to be sure, but one that ensured that the asset would still be able to produce. Laws like these were commonplace, and would remain so across the New World until the country begin to split over the matter of slavery. However, not even the existence of free states would provide slaves with any degree of safety from the law.
As the country divided, southern states became increasingly concerned about the risks of allowing these free territories to exist. Which is how the Fugitive Slave Acts came into existence. The first one, established in 1793, gave slave owners and their “agents” the right to go into free states and search for their property, which was other people. It also imposed a $500 fine on any person caught helping an escaped slave evade capture. A side effect of this particular law was that free Blacks, who were never slaves, were also regularly kidnapped from the north and forced into slavery. It’s little surprise then that northern states took great offense to this, with many citizens simply choosing to ignore the existence of such laws and protect slaves anyway. Some states even went so far as to establishing their own state laws meant to do just that.
But in 1842, in Prigg v Pennsylvania, the Supreme Court set the precedent that federally established fugitive slave acts took priority over state laws. And in 1850, the enhanced Fugitive Slave Acts were passed, which not only demanded that citizens aid in the capture of slaves, but also established that interference in the act was now punishable with a greater fine and 6 months in jail. After the Civil War, Black people were subjected to yet more legalized horror. The Jim Crow south featured an entire suite of laws meant to degrade, dehumanize, and oppress, essentially establishing two separate countries in the south. Comparisons to apartheid South Africa do not miss the mark.
The North, while better, was also home to legalized discrimination. The consequences of the National Housing Act of 1934, which formally established the act of “redlining,” were felt in cities across the nation and are still visible in our cities today. Even after the Civil Rights era, the law continued to work against Black people. The War on Drugs. Crack/Cocaine disparity. The establishment of mass incarceration. Discrepancies in marijuana policing. This list, which is hardly comprehensive, stretches from our ancient past to our current time.
The truth is that there is no era, anywhere in our nation’s history, that the law has not been a weapon to be wielded against Black people. The reality is that not only have we suffered, but that oftentimes our suffering was legal, and therefore justified to many.
The Fix
So how, in the face of all that, can Black people be asked to wait? How can there be any truly moral argument that suggests Black people should “hold on?” For nearly 400 years we have waited our turn. We have patiently asked that the country turn its attention to us, and we have been ignored time and time again.
It is not that other issues don’t matter -- they do -- and each issue is of profound importance to somebody. That cannot be denied. But, asking Black people to accept anything less than full throated support of abolishing qualified immunity, which is the absolute least we could be given, is not just offensive, it’s dangerous. Policies just like it have quite literally cost us our lives for centuries.
Donald Trump is a man. Joe Biden is a man.
All men, and all people, are flawed and imperfect.
Which is why parties should not merely stand for people. What they should stand for is ideals. If the Democrat party is to ever truly be the party of equality and justice then it’s time for them to live up to what those ideals demand.
And if they are not willing to do that? Then Black people should start thinking about building a new home for themselves. One where their lives, and dignity, aren’t placed at the back of the bus.