Reimagining the Criminal Justice System

Duke scholars discuss calls for police reform in media briefing

Reimagining the Criminal Justice System
Professors Brandon Garrett, Laura Edwards and Darell Miller.

Broad criminal justice reform is needed to change policing in the United States, and it should originate at the local level, Duke scholars said Thursday.

Three Duke experts spoke to media Thursday about a variety of policy and reform issues as well as about what can be learned about policing at the nation’s founding.

Here are excerpts:

ON POLICING, DEADLY FORCE AND REFORM

Brandon Garrett, law professor

“Police in America have incredibly broad discretion to use deadly force. About 1,000 people are killed each year by police, making police violence a leading cause of death for black men in particular. This is a public health and civil rights crisis. It’s also a legal and cultural crisis.”

“The law is not particularly constraining of police. The Supreme Court has said that officers can basically react to potentially deadly situations based on what seems reasonable in the moment.”

“That shoot-from-the-hip approach has led to black suspects far more likely to be killed by police. George Floyd posed no risk to anyone when he was killed in the neck hold in Minneapolis. Tamir Rice had a toy gun when he was killed in Cleveland. We can go on and on.”

“We need to think more broadly about what is public safety. What do we need police for? And when is it appropriate to have armed people intervene in our society?”

“Our (Duke Center for Science and Justice) does work on use-of-force policy – and this is a deep legal and institutional and culture problem. A joint statement by our center, with others, including collaborators on ALI Principles – sent this out in a Changing the Law to Change Policing statement yesterday.

ON WHAT ‘DEFUND THE POLICE’ MEANS RIGHT NOW

Darrell Miller, law professor

“The question about ‘defund the police’ is about what the slogan means. Unfortunately, I think it’s got so much meaning it really doesn’t work effectively as a slogan. Defund the police, at its most useful and constructive, is a request to totally re-think how we do policing in America. Who does it, with what kind of tools, where, under what circumstances. It’s about re-deploying resources to other non-policing functions that are also social services like job training, substance abuse programs, domestic violence prevention work.”

“Because it’s a slogan and easily misunderstood, it’s easily misunderstood to mean ‘abolish the police.’ I really think that will be detrimental to Black Lives Matter and to black lives in general.”

“I think that will empower and embolden vigilantes, people who will engage in armed self-help in the way that led to the deaths of Trayvon Martin 10 years ago and Ahmaud Arbery earlier this year.”

“The issue about abolishing the police or dis-establishing the police has the potential to abolish the one police function that’s politically accountable. If someone designates himself as an armed neighborhood watchman and stops me, I don’t have any control over that person. I can’t make them wear a body camera. I can’t make them engage in de-escalation techniques. … I don’t even know who to file a report with.”

“With a police force that is taxpayer-supported, that is politically accountable, I have some control as a voter and a taxpayer over what kind of force is being used in my community.”

ON HOW OUR NATION’S FOUNDERS ENVISIONED POLICING

Laura Edwards, history professor

“At the time of the nation’s founding, policing as a term was used broadly to refer to ‘governing.’ “

“It was about resolving a wide range of problems and injustices, and everybody had responsibility for policing in this broad sense. And everyone could draw on police powers as well, and that was particularly important for people who were unequal, who were on the margins of society, who could then call on government and their authority to back them in various complex problems in their lives. We tend to forget all that today.”

“We think of policing now only as police forces of uniformed officers. But that didn’t exist in the 18th and early 19th century. And we think policing only refers to crime, but that was not what policing was about then. It was about this broader sense.”

“It was written into our constitutional order. … States delegated authority to local governments so people could participate actively in the policing of their communities.”

“People have the constitutional authority to hold modern-day police forces accountable. But they also have more power than that. They have the right to actually hold and define how government uses police powers, and to what end.”

“This is important because police powers are actually about more than crime and criminals. They’re about resolving conflicts. They’re also about addressing the problems of people in trouble. They’re about rectifying deep-seeded injustices.”

“The past tells us that policing isn’t an either/or issue. It’s not that you do it or don’t to it. It’s actually about how we do it and that really is about our constitutional order.”

ON HOLDING POLICE ACCOUNTABLE

Garrett

“It’s very, very hard to hold police officers liable, even in fatal shootings captured on video. … Because police benefit from another layer of benefit of the doubt, reasonableness, what could they do in the circumstances? They have to make split-second decisions. That’s sort of the tenor of a lot of the reasoning of federal judges.”

“Also important, though, is internal accountability within police departments. Police discipline. Police policies matter even though they’re just on paper because if police officers do something to violate their policies, something should happen.”

ON THE LIKELIHOOD OF REFORM FIRST AT THE LOCAL LEVEL

Miller

“I think we’re seeing it already. To the extent that some of the demands of activists in the streets over the last few days are actually percolating to thought leaders, to political leaders. Some of the proposals for police reform … are already being drafted as draft legislation in Congress. Abolishing qualified immunity for police officers, conditioning funding for local police on keeping accurate records on use of force or discriminatory policing.”

“To the extent that there are truly groups that truly believe that police are not needed, they are also active. I am doubtful that as a nationwide matter we will see the widespread disestablishment of police. But if local communities, in Minneapolis or Seattle, want to take some or all of the ‘defund the police’ rhetoric and implement it as policy, they have the ability to do so. I just hope they choose wisely when they end up making these demands into policy.”

ON RECOMMENDATIONS FOR REFORMING POLICE

Garrett

“I think we do need to rethink what we need police for. What the structures are for policing agencies. Why do we so often arrest people? Why do we so often place people in jail, which we didn’t even just a few decades ago? During COVID, urgent new questions have been asked about why people end up in jail for petty crimes, largely due to the inability to afford cash bail.”

“Policing agencies are needed in many places for public safety, obviously. But there are lot of very small police agencies that can’t possibly follow best practices or have good training. We need to consolidate police departments.”

“We need to revise criminal codes and consider decriminalizing (some) offenses. We don’t need to be arresting people, let alone holding them in neck holds, for using a counterfeit $20 bill.”

ON HOW POLICING WAS SEEN POSITIVELY EARLY IN US HISTORY

Edwards

“At our founding, policing had very broad and positive connotations. We now associate all these negative connotations to it in the sense that we associate it with police forces that are separate from people and are enforcing laws and trying to root out crime. It’s become a very negative kind of thing.”

“People imagine policing in the past to be simply about militias. But militias were actually organized to address specific threats, and were very temporary, and then disappeared after the threats were gone.” 

“Ordinary people, marginalized people could also use police powers to address what they saw as the major issues and problems in society. I think we’re missing that part of it. Historically, police powers belonged to everyone.”

ON ONE POSITIVE CHANGE YOU’D LIKE TO SEE RIGHT NOW

Garrett

“I’d like to see comprehensive, state-level police reform and criminal justice reform legislation in states like North Carolina.”

“We need comprehensive reform. … We need to be looking to our local elected leaders to make deep change.”

Edwards

“I’d like to see us think about the protesters and also their demands as what is a part of our original constitutional order, and return to that, and what we see now with the way … police forces are acting, and what they’ve become, is actually aberrant, what is actually a move away from the original constitutional compact.”

Miller

“The fact that we’re at a moment, I think, where people really do recognize … that this is a problem, that this is a problem that needs to be addressed, that America is not living up to the best version of itself, and that some kind of real, substantial, data-driven changes are available and can be implemented soon – I hope people will recognize the magnitude of this moment.”

The experts:

Laura Edwards
Laura Edwards is a professor of history at Duke University. Her areas of expertise include women’s history and legal history, including history of the law in the 19th century South and the legal history of policing. She is the author of several books, including “A Legal History of the Civil War and Reconstruction: A Nation of Rights.”
ledwards@duke.edu

Brandon Garrett
Brandon Garrett is a law professor at Duke University and a leading scholar of criminal justice outcomes, evidence and constitutional rights. Garrett’s research and teaching interests include forensic science, eyewitness identification, corporate crime, constitutional rights and habeas corpus and criminal justice policy. He is the author of five books.
bgarrett@law.duke.edu

Darrell Miller
Darrell Miller is a law professor at Duke University who specializes in civil rights, constitutional law, civil procedure and state and local government law. He also co-directs the Center for Firearms Law at Duke. Miller is the co-author of “The Positive Second Amendment: Rights, Regulation, and the Future of Heller” (2018).
dmiller@law.duke.edu