Richard DeShay Elliott: A Criminal Justice Agenda

Maryland State House. Photo by Danielle E. Gaines

It is widely known that the United States of America is the largest incarceration state in world history. While the U.S. has 5% of the world population, we detain nearly 25% of the total incarcerated population.

This is no accident. Modern policing’s origins were the slave patrols and deeply racist criminal policy. From the end of chattel slavery, states in both the North and South adopted Black codes to invent minor crimes such as vagrancy and public intoxication, to send newly-freed Black folks to the post-13th Amendment plantation of convict leasing: the prison.

This became more prevalent as Reconstruction was violently overthrown and Jim Crow segregation laws were institutionalized in the South. From Jim Crow and Massive Resistance to desegregation to the public policy agenda of Presidents Lyndon Johnson, Ronald Reagan, and particularly Bill Clinton, incarceration and police presence have increased dramatically even as crime has decreased.

RDE
Richard DeShay Elliott

While Maryland appears to be a progressive state with enclaves of Black wealth and Black political power, this Democratic facade has masked one of the most police-heavy societies in world history. Maryland spent $443 per citizen on police in 2017, 4th most among states, and the City of Baltimore spent $904 per citizen, more than any American city besides Washington, D.C.

Democrat Martin O’Malley served an active role in worsening mass incarceration during his tenure as mayor of Baltimore and governor of Maryland.

As mayor, his strict quotas led to over 100,000 arrests for multiple years in a row in a city of 600,000, many of which were made on “Jump out” days, while education funding stagnated and police officers manipulated statistics to artificially lower crime statistics.

As governor, O’Malley implemented policy to automatically deny parole for prison lifers, supported pre-conviction DNA collection for violent crime detainees, stagnated education funding for Baltimore, and vetoed a bill to end mandatory minimums for drug possession with intent to distribute, his only veto of 2007.

I present an agenda for the House of Delegates’ policing workgroup that will reduce arrests and incarceration in our state, defund and address the systemic problems associated with policing, and focus our public policy on improving our state.

I am a police abolitionist and prison abolitionist, and genuinely believe that the current institutions of policing serve far more harm than good to our society. Once the violent, brutal, extractive history of policing is examined, it is clear that we must dismantle the current system and create a new means of public safety and community support.

My agenda includes:

Reallocate police and prison spending to community resources

Maryland has a larger percentage of Black folks incarcerated than any other state in this country. More than 70% of Maryland’s prison population was Black in 2018, more than in Mississippi, South Carolina, or Georgia and more than double Maryland’s 30% Black population. Maryland’s incarceration rate has remained high despite reductions in crime.

Prison is torture, literally, according to the World Health Organization. Maryland has a higher rate of incarceration for Black men age 18-24 than any other state. Reducing prison sentences and banning mandatory minimums and solitary confinement will get community members home, reduce the mental harms of prison, and reduce our incarceration budget.

The 2020 budget allocation for the Prince George’s County Police Department and Sheriff’s Department is $414.8 million (11.46% of the $3.62 billion budget), more than 11 times the total investment into human services and nearly 12 times the total investment into the environment and infrastructure combined. The budget for the Prince George’s police and Sheriff’s Department is more than the military budget of Ethiopia, a nation with 120 times as many residents.

Baltimore City is investing over $527 million (15% of the $3.8 billion budget) into policing, $146 million more than is allocated for Baltimore City Public Schools and 12.5 times the funding for community development. BPD’s budget is more than the military budget of Cuba, a nation with 19 times as many residents.

The immense sum that Maryland currently spends to arrest, torture, and surveil the most vulnerable among us would be better and more morally spent on programs that empower the most crime-plagued communities to address trauma and end violence and poverty. Funding the Kirwan Commission, improving our public transportation and education systems, and creating emergency response services centered around mental health and safety are better uses than police bloat and overcrowded prisons.

Repeal the Law Enforcement Officers’ Bill of Rights (LEOBOR)

The Law Enforcement Officers’ Bill of Rights serves the purpose of protecting police officers from investigation and prosecution following acts of misconduct, such as granting a “cool-off” period before an investigation and keeping investigations under authority of Internal Affairs Departments. This law first passed in Maryland in the 1970s and has since spread to 16 states.

With LEOBOR in place, even the most minimal accountability measures are impossible to apply. Currently, the Baltimore Civilian Review Board requires a civilian complaint to begin an investigation, but can’t compel an officer to testify, and the Police commissioner is under no obligation to follow their recommendations.

By repealing LEOBOR, Maryland can create civilian review boards and other accountability measures with the power to investigate misconduct and decertify cruel, corrupt police. And when LEOBOR is repealed, we must ensure that collective bargaining agreements by local and state police departments do not circumvent accountability measures.

Return Control of the Baltimore Police Department to Baltimore City

During the Civil War, control of the Baltimore Police Department was taken by the Maryland General Assembly, as the BPD and mayor of Baltimore were Confederate sympathizers — and local control has never returned. Baltimore City’s government has limited ability to influence policing policy or enact meaningful oversight, which is needed to comply with the federal consent decree.

Ban private police departments

In 2019, the Maryland General Assembly approved a proposal for Johns Hopkins University to create a private police force. Supporters of this legislation include Del. Vanessa Atterbeary, the chair of the new House committee to reform policing; Judiciary Committee Chair Luke Clippinger, Democratic Caucus Chair Jazz Lewis, then-Senate President Mike Miller, and former presidential candidate Michael Bloomberg. The opponents included Baltimore Sens. Jill P. Carter and Mary Washington and Dels. Gabriel Acevero, Erek Barron, Debra M. Davis and Julian Ivey.

Demonstrators opposing the bill allowing Johns Hopkins University to establish its own private police force outside the State House last year. Photo by Bruce DePuyt

This legislation was intended to create a private police force for the university and campus property and establish precedent to allow private police forces in corporate parks, neighborhood associations, and towns across Maryland. This private police proposal was not supported by the students, faculty, or staff of Johns Hopkins. It was not supported by neighboring communities or the faculty of other universities. JHU has since announced a two-year delay in implementing this police force under public pressure.

Replacing public police, with smaller private police forces, is possibly worse than the status quo. Existing private police forces, such as the University of Chicago’s, have  records of racial harassment and brutalizing civilians that are just as bad as local police departments. Accountability is nearly impossible, as the officers are accountable to an entity’s Board of Directors rather than elected officials or anyone with public oversight. Privatizing police will allow any millionaire or corporation to hire a unaccountable private army.

Transparent misconduct investigations and direct accountability

Anton’s Law, named after Anton Black who was murdered by police on the Eastern Shore, was introduced by Sen. Jill P. Carter and Del. Gabriel Acevero in 2019 and 2020 with the purpose of establishing standards on use of force and citizen complaints. Judiciary Chairman Clippinger, a white prosecutor from Baltimore, passed watered-down reform legislation to detract from this legislation.

The Baltimore Police Department has spent nearly $13 million on misconduct settlements since 2014 and the Prince George’s Police Department has spent over $10 million on misconduct settlements. In spite of these settlements, officers almost never face discipline of any type. Just five police officers have been convicted of murder in the past 15 years across America, out of 110 indicted. There were over 1,000 civilians murdered by police in 2019 alone.

With a repeal of LEOBOR, officers who commit misconduct and leaders who promote or conceal misconduct can be held financially responsible and face losing their pensions and certification as police officers. When police officers do have body/car cameras, they must be required by law to keep them on and to turn over full footage within 72 hours.

Strict use of force standards

When questioned by Acevero during the initial session of the Policing Workgroup, policing officials could not point to a uniform use of force standard for Maryland police. While Black folks such as Anton Black, Leonard Shand, and Freddie Gray have been brutalized by uniformed officers, there is no standard as to what constitutes a threat. Even more disturbing, Maryland is one of 35 states where police officers are not banned from sexual contact with detainees.

It should be a blanket requirement for all armed police and security officers in the state of Maryland to have clear use-of-force requirements and we must make sexual contact between police and detainees illegal. Police do not need to be armed to perform their duties, nor do they need more handgun training. This brutality is not new. A July 2001 exposé conducted by The Washington Post documented Prince George’s police as having shot and killed more people per officer than any of the 50 largest law enforcement agencies in the country between 1990 and 2001.

During that period, 122 residents of the county were shot, 47 fatally, and Black folks comprised 84% of those killed where race was identified. All of these shootings were found to be justified, including shooting unarmed civilians, and not a single officer involved was fired or demoted. The Maryland ACLU recently reported that at least 109 persons were murdered during police encounters in Maryland from 2010 to 2014, and that 21 of these deaths took place in Prince George’s County.

Statewide, the rate at which Black folks were killed during police encounters (deaths per population size) was five times that of whites, even in Prince George’s County. While Black folks make up 30% of the population in Maryland, 69% of those murdered by police (75 persons) were Black. Most disturbing, the number of unarmed Black folks who were killed by police (36 people) exceeded the total number of whites who were murdered by police (30 people), armed or not. Canine units have a history of biting and severely injuring Prince George’s County residents, leading to a consent decree that lasted from 2004-2009.

It must be acknowledged that reforms on use of force do not guarantee peaceful officers. Police chokeholds were banned in New York City in 1993, but Eric Garner was still killed in a chokehold more than two decades later. Of the #8CantWait policies supported by DeRay McKesson, seven are currently implemented by the Baltimore Police Department and Washington, D.C., police, showing the limitation of these tepid reforms. Training police in martial arts, as Del. C.T. Wilson has recommended, is also a weak reform. We have seen police murder and maim civilians using chokeholds and brute force numerous times. Brutality will remain at the core of policing, as long as policing is the default solution to social ills.

Publicly accessible data on personnel records, misconduct complaints, hiring practices, and inter-departmental discipline records

Just as LEOBOR allows police to hide investigations, it allows the police to hide data on police interactions and whether “new” officers have transferred from other jurisdictions following misconduct.

Former Prince George’s County Police chief Hank Stawinski. Photo by Michelle Basch/WTOP

Police officers in Prince George’s County have systematically concealed evidence of racial harassment and brutality towards residents and racial discrimination within the department towards Black and Brown officers, as detailed by an ACLU report. If information on who is stopped and why, who is hired and why, and who is internally disciplined and why is not publicly available, who does that benefit besides corrupt leadership and brutal police officers?

Demilitarize and disarm the police

Since 1995, the Prince George’s County Police Department has spent $2.1 million on the Department of Defense’s 1033 program to acquire an armored personnel carrier, three armored trucks, 777 guns, and other military equipment. Militarized police, particularly SWAT, are most likely to be used in Black communities. SWAT is notorious in Prince George’s County for serving no-knock warrants to pursue non-violent drug offenders. In the first six months of 2009, SWAT was deployed in Prince George’s over 100 times.

During the Baltimore uprising, it became difficult to distinguish National Guardsmen from Baltimore police. Tear gas usage violates the Geneva Conventions, but this has never stopped Maryland’s police from using tear gas. So-called “less than lethal” weapons such as tasers, batons, and rubber bullets have killed citizens for years and deeply traumatized many more.

From 2010-2014, 41% of those who were killed by police weren’t armed and nearly 100 civilians were murdered by police gunfire. Why do police officers need armored personnel carriers and other weapons of war, unless they plan to wage war on civilians? Why do police feel the need to use such murderous tactics when they aren’t in danger?

Ban civil asset forfeiture and quota systems

Civil asset forfeiture is the process by which police seize assets from those believed to be committing a crime, without charging them for a crime. In 2012, Maryland police seized $6 million in assets and in 2013, another $2.8 million was seized. This practice, allegedly employed by the Gun Trace Task Force in Baltimore, is legal theft and it is very difficult to retrieve the assets after the seizure.

Quota systems mandate that police departments arrest or issue citations to a certain number of civilians for the purpose of generating budget revenue through fines or grants, and have been used in Maryland. Quotas create unnecessary contact between police and civilians, and offer an incentive to pull over and question anyone. This hearkens to the practice of arresting innocent Black folks during the cotton harvest season after the Civil War.

Ban prison profiteering, cash bail, and private prisons

Prison labor is slavery. Prisoners earn between $1.50 and $5.10 for a day’s work. Maryland Correctional Enterprises (MCE) holds a contract to produce goods, such as office furniture, for our state’s public universities, nonprofits, and government agencies. My alma mater, the University of Maryland, Baltimore County, has purchased desks, systems furniture, seating, file cabinets, conference tables, and lounge seating from MCE, according to Contract Administrator Donna Von Paris. The University System of Maryland spends $11 million on MCE products every year, as the Code of Maryland requires them to purchase from MCE.

Maryland’s prisoners are currently making face shields, masks, and hand sanitizer, while the state allows COVID-19 to fester in jails and has not yet tested all of the incarcerated. In Maryland jails, a 15 minute-phone call can cost as much as $6 and the average cost is $3.03. This is theft from the most vulnerable.

Cash bail, which has been banned in New York, monetizes freedom. When someone needs to go to work but can’t afford bail, they can lose their home, their family, and their dignity. Returning citizens in Maryland average $743 in probation fees, another barrier to re-entry, with only 7% of parolees being granted exceptions. Private prisons allow private interests to directly profit from the damage of incarceration. There are over 120,000 Americans in private prisons, a nearly 40% increase since 2000, and 32 Marylanders are currently in private prisons.

Ban youth incarceration and stop charging children as adults

Youth prisons only serve the purpose of preparing our children to be incarcerated adults. These facilities are not geared for rehabilitation and they have negative health consequences on the incarcerated. Governor O’Malley supported a 120-bed jail in Baltimore City for youth who were charged as adults, but this plan was fought and stopped by then-Del. Jill P. Carter and grass-roots activists in Baltimore. Prior to COVID-19, there were 658 Maryland juveniles in detention. According to Del. Debra M. Davis, most were Black and Brown youths being held on minor charges.

Sen. Jill P. Carter (D-Baltimore City). Photo by Danielle E. Gaines

Charging Black and Brown children as adults further perpetuates the incarceration state. According to psychological studies, Black children are seen as older and less innocent beginning at age 10. This leads to Black children being seen as guilty and being charged as adults as young as 13.

Ban ICE detention facilities and 287(g) agreements

Immigration and Customs Enforcement (ICE) was formed in 2003 under the George W. Bush administration. Under the Obama administration, this agency deported over 2.4 million and under the Trump administration, the agency is separating families of migrants and committing human rights abuses en masse without any accountability. Under Presidents Clinton, Bush, Obama, and Trump, the civil offense of undocumented entry has become a criminal offense that gets men, women, and children thrown into cages and deported. There are ICE detention centers in Frederick, Worcester and Howard counties, and privatized centers have been made throughout the country.

Howard County Executive Calvin Ball, the first Black executive of that jurisdiction, has refused to end the jail contract with ICE despite introducing sanctuary legislation while on the Howard County Council. Del. Vaughn Stewart introduced legislation in 2020 to ban these centers. Frederick, Harford, and Cecil counties have 287(g) agreements, deputizing local police to direct immigration policy.

The direct impact is that these police officers pursue and detain people who “look foreign”, even if they are citizens, to pass them over to ICE. These agreements directly attack people of color in Maryland and the Maryland Trust Act sought to end them.

Disband the Fraternal Order of Police and other police unions

Police are not like workers in other professions. Workers are not used to protect private property at the expense of human lives. Workers do not brutalize other workers without facing discipline. Workers do not rack up endless hours of overtime fraudulently. Workers do not have the ability to confiscate resources from other workers under the guise of civil asset forfeiture.

Police currently constitute a protected class. Their unions have the direct interest of hiding misconduct, violating the public trust, and working to protect their union members to the detriment of the general public. As long as police have such strong unions, they will resist all reforms.

Establish alternative means of justice

As a result of never seeing beyond the criminal justice system, many people equate incarceration with justice or as the best deterrent to crime. This is not the case. Jail and prison are torture, and they are relatively new practices to human civilization.

One alternative is community courts, implemented in New York City and Philadelphia, which divert people who’ve been convicted of quality-of-life crimes out of the penal system and into community service programs with drug treatment and mental health components. Sending poor people to jail erodes community, but giving them opportunities in their own communities and addressing their traumas improves their lives in the long term. Imagine how you can achieve justice for wrongdoing without throwing humans into cages and destroying their dignity and mental health.

Dismantle the surveillance state

Some have upheld the Camden, N.J., example of what disbanding the police should look like. I disagree with that assessment. The Camden Police Department, while adopting the image of “guardian figures,” has not changed the intention or goals of policing. The agency is run by the surrounding county rather than by the residents of Camden, one of many examples of racist municipal takeovers in recent American history. The Camden Police Department is based around invasion of privacy by permanent electronic surveillance of Camden residents. Camden PD has 121 cameras, 35 microphones to trace gunshots, automated license plate scanners, and a mobile observation post with thermal cameras, for a town of just 74,000 people.

This strategy of crime containment exists in Baltimore too. In Thiru Vignarajah’s mayoral campaign, he expressed strong support for invasive privacy measures. The operator of the spy planes, which first flew during the uprising following the police murder of Freddie Gray, funded a $100,000 SuperPAC for Vignarajah.

This spy plane violates the privacy of every citizen of Baltimore and footage captured by it can NOT be used to investigate police misconduct. Baltimore is the first American city with publicly known domestic surveillance by plane. He also supported “targeted wiretaps”.

An omnipresent surveillance state that is focused on catching criminals rather than preventing the roots of crime is 21st century Broken Windows policing that will perpetuate and expand the deeply racist, classist impact of incarceration and punishment. Facial recognition software is unreliable and often misidentifies women and people of color. Flat fines, like the Maryland cameras that generated over $288 million in speeding tickets over five years, criminalize poverty and the revenue from these fines has been used to purchase police equipment. We do not need techno-racist police surveillance: we need to minimize contact between the police and residents.

End the school to prison pipeline

After the Department of Justice created a $750 million grant under the Clinton administration, 6,500 School Resource officers were hired across the country. This continued following the school shooting at Columbine High School, as did the expansion of zero-tolerance policies that drastically increased suspension, expulsion and arrest rates for students and redirected education money to policing.

Black students continue to face higher rates of arrest, suspension, and expulsion than other students in our state. “Alternative” schools, such as Tall Oaks in Bowie, serve the purpose of removing “troubled students” from public view and guiding them into the military rather than addressing their mental, social, and emotional needs as children. Dress codes, as I had at Thomas Johnson Middle School and Gabriel DuVal High School in Prince George’s County, offered another way to suspend and expel students of color while whiter high schools such as Bowie and Eleanor Roosevelt do not have dress codes.

Abolishing SROs and ending dress codes and zero-tolerance policies will begin to undo the disturbing pipeline that puts children into contact with police, detainment, and disciplinary programs. Our schools should be dedicated to improving the education, mental health, and safety of our students, not creating another way to entrap them in handcuffs.

Decriminalize sex work and drug possession and consumption

Ninety-six percent of those arrested in Baltimore for marijuana possession since 2014 were Black. While legal cannabis businesses operated by politically connected, wealthy white Marylanders are making immense profits, Black and Brown Marylanders charged with possession are languishing in prison. Incarcerating civilians for drug possession, whether marijuana or heroin, does not help to stop the flow of drugs. If the government seeks to stop the drug trade, the banks that launder drug money and the importers who bring drugs into Black and Brown communities are who to investigate.

Sex work is work, and these workers deserve protection from abusive Johns and economic precarity. Policies that have worked in the Netherlands and Nevada to protect sex workers will do much more to help fight sex trafficking, kidnapping, and abuse than criminalizing sex workers.

— RICHARD DESHAY ELLIOTT

The writer is a Political Science Ph.D candidate at Johns Hopkins University, Chair of State Affairs for the Prince George’s County Young Democrats, and candidate for Delegate in Maryland’s 24th Legislative District. The opinions expressed here are his own and not the Young Democrats’. You can find him on Twitter at @RichForMaryland and on Facebook.