Cincinnati Deals with a Police Shooting

Samuel DuBose

Let me begin with a personal note.  My wife and I drive a car with no front license plate holder.  Over the past five years, we have frequently driven this car in or around the University of Cincinnati campus.  We have never been stopped or ticketed.  However, the missing front license plate became the pretext for pulling over Samuel DuBose.  It was yet another case of “driving while black”. Tragically, this one turned fatal.

On news of another death at the hands of police, commentators unfamiliar with Cincinnati assumed that the same thing would happen here as had happened in Cleveland and elsewhere in the nation.  They were a little surprised at what “even the police chief” thought of the video of the shooting, but they still expected the worst. [from alternet.org:]

“The video is not good,” [Cincinnati Chief of Police] Blackwell said. “I think the city manager has said that also publicly. I’ll leave it there.”

But here’s the thing.

All studies indicate that in nearly 99% of instances of police killing someone, even in the most egregious circumstances, “something appropriate” doesn’t actually happen and officers are let off.

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When I read this, I expected Cincinnati to fall in the 1%.  Since the collaborative agreement that emerged after the killing of Timothy Thomas in 2001, the Cincinnati Police have worked hard to establish a culture of Constitutional Policing that has credibility with the black community.  This shooting was committed by a member of the university police, which apparently does not share this culture.  Normally, in the case of a shooting like this, the Cincinnati Police release the raw video right away. Given their delay this time and their public comments, I expected some unusual action.

The university, knowing the video would be released to the public Wednesday,expected trouble.  It shut itself down, canceling classes and evacuating students.  State police were brought to the scene.

Joe Deters
The video was released.  “Not good” turned out to be an understatement.  Ray Tensing was charged with murder.  In the press conference, the Hamilton County prosecutor, Jet Deters, made his position clear

:

It’s an absolute tragedy that anyone would behave in this manner …It was senseless. It’s just horrible. …

He purposefully killed him…

Some people want to believe Mr. DuBose did something violent toward the officer. He did not. He did not at all. …

[UC Policemen Ray Tensing] never should have been a police officer. …

He was dealing with someone without a front license plate, …chicken crap stuff.

I feel sorry for [DuBose’s] family. I feel sorry for the community, too. This should not happen. Ever.

<Cincinnati Enquirer>

Talk like this defuses the powder keg.

Bishop Bobby Hilton, a leader of the black community in Cincinnati,  “What more can you ask for? As terrible as it is, it should be a proud moment for our community. We can prove that we can take the most horrible incident and show the world how our community reacts and becomes better.”

It remains to be seen what is to be done with some other officers who arrived on the scene later and offered testimony corroborating Tensing’s original account, which is inconsistent with the video.  This issue has been raised by some of the protesters.

The protest itself, perhaps somewhat subdued by the heat and thunder showers, was peaceful.

The American system of justice does not work automatically.  Ferguson has shown us how it can fail.  The foundation of the failure is laid by a public largely uninvolved with the civic sphere.  It culminates with public officials who are callously unaware of the problems faced by the people they supposedly serve,  who use discriminatory policing as a way to extract revenue from its poorest citizens, who instinctively give the police the benefit of the doubt despite evidence to the contrary, and who think that deaths at the hands of police, tragic as they may be, are a normal part of keeping the peace when dealing with “those people”.  “Those people” are us, all of us.  Our system requires both a vigilant public and officials who are committed to providing security and justice for all.

There is plenty still to do, but our city can pause for a moment and take pride in how far we have come in this new century.  The lawyer for the DuBose family, Mark O’Mara, summed it up this way:   “Cincinnati is showing us how to do this right.”

“What About Cop Killers?”

Retributive Justice and the Death Penalty

Christopher Monfort, convicted of the fatal shooting of Seattle Police Officer Timothy Brenton.

Christopher Monfort, convicted of the fatal shooting of Seattle Police Officer Timothy Brenton.

Perhaps instinctively, we all understand revenge.  In Shakespeare’s Hamlet, we identify with the young prince on his quest to avenge the murder of his father, even as he kills the innocent old fool Polonius, drives the beautiful Ophelia to madness, and in general creates enough collateral damage to destroy the kingdom.  Societies have developed a way to curb this instinct for vengeance and avoid the wanton destruction that often accompanies it.  Rather than seeking to personally avenge the wrong, the citizen hands over that burden to the larger society with the expectation that justice will be done and that the punishment will fit the crime.  In some cases, the crime is so heinous that the only proportional punishment is death. By careful research, social scientists have pretty much refuted the idea that capital punishment is effective in deterring crime.  However, these arguments have not had much sway on that segment of the public which supports the death penalty.  For many, the government needs to be able to apply this ultimate punishment in order to fulfill the implicit contract on which our system depends.  The death penalty is needed to satisfy their sense of justice. Paradoxically, it is this same intuitive sense of justice that is leading people to abolish the death penalty: too often, we convict the wrong person.  We have killed people who are innocent of the crime.  Unable to achieve perfection in court system, people are choosing to abandon this ultimate, irreversible penalty in favor of life in prison without parole.

“What about Cop Killers?”

Several years ago, while I was serving as clerk of my local meeting, I received a call from a retired police officer.  I think he had probably called several pastors in the area.  He wanted to talk, to find out what we believed, to learn, and to be heard.  We had a wide ranging, cordial exchange of views, in which we agreed on almost nothing.  When the conversation touched on  capital punishment and I told him my reasons for opposing it, he came back with this question: “What about cop killers?”  Perhaps my response was a bit flippant.  In any case, he became markedly less articulate, as the very idea of cop killers filled him with rage. Though we have not spoken to each other since, I have thought quite a bit about this conversation.  Our differences of opinion were, in part, based on our different life experiences.  Police get into the sewers of our society, seeing people at their most dangerous and self-destructive extremes.  We ask, no, we demand, that our police keep themselves aloof from this depravity, and that, however they are treated by the public, they carry out their duties with an almost superhuman restraint.

Brenton

Timothy Brenton, Seattle Police, murdered 2009.

I know that there is enough violence within me that I would want to exact revenge if someone close to me was raped or murdered.  Can I expect someone else to be willing to hand over to the government responsibility for vengeance even if they think that the ultimate punishment would be insufficient for the magnitude of the crime?  For a typical citizen, the answer is clearly yes.  However, how much can we ask of a police officer who has his hands on someone he thinks murdered his comrade?  Again, the answer is clear: we ask them to treat such a suspect with the same respect, the same presumption of innocence, that they would any other.  This requires that the police have confidence that if the person is guilty, justice will be done. I have argued for an end to capital punishment through legislation rather than through the assertion of constitutional rights.  As our nation makes the transition toward “Constitutional Policing”, I think it would be appropriate for such legislation to make special provision for burden our society places on the police. I expect that local chapters of the Fraternal Order of Police will eventually come around to a point where a majority would support a complete ban on the death penalty.  Until that time comes, I think our society is best served with a compromise:  the law should make an exception and allow the death penalty to be imposed for cop killers.

Abolishing Capital Punishment

hanging2

Time was, executions were prime entertainment in America: large crowds would gather to watch a court sanctioned hanging — or a well publicized lynching.  Eventually, the barbarity of this public spectacle upset the voting public, so now, the execution takes place in a private ceremony, in front of invited witnesses.   Replacing the quick, rough, and often racist judgements of the that bygone era, we now have a nearly endless series of appeals, stretching on for decades, as the court system tries in vain to assure that it has removed every possibility of a flaw in its procedures.  Instead of the old fashioned rope, we attempt to render death quickly and humanely by applying new fangled technology: formerly, the electric chair or the gas chamber, and now, a complex cocktail of intravenous drugs.  This approach is difficult to administer: competent medical professionals won’t cooperate because of a code of ethics that clearly states that they “should not be a participant in a legally authorized execution,” and pharmacies are unwilling to have their brand associated with drugs used to kill people.  However, executioners muddle through somehow, though occasionally they thoroughly botch the job.

Supreme Court

Thus, we come to the Supreme Court case, Glossip v Gross, which challenges the constitutionality of this absurd parody of a medical procedure.  The court decided, “Because capital punishment is constitutional, there must be a constitutional means of carrying it out.”  So even if the foes of capital punishment had won this battle and the court had decided that the method Oklahoma currently uses didn’t meet the requirements of the Constitution, it would have been at most a temporary glitch.  Another method would be found that was acceptable to the court,  perhaps the firing squad employed by Utah.

I oppose the death penalty, not on constitutional, but on religious grounds. Quakers often say there is that of God in every person, and nothing denies the divinity of another more than putting him to death. Capital punishment is simply contrary to the message of forgiveness, redemption, and love that is at the heart of the teachings of Jesus. However, as important to our society and culture as these teaching are, it would be inappropriate for the Supreme Court to apply them to the law of the land.

My second objection to the death penalty, though also religious at its core, is one that the justices could more appropriately consider: humans, being less than perfect, make mistakes.  Despite everything that we have done to insure that the courts are fair and just, we convict people who are innocent of the crime. In capital cases, these flaws are fatal.

In an ideal society, we would not have to sit in judgement of our fellow man.  However, in this world, we must.  But our judgement should not be a matter of life and death.  The American court system may be among the finest of human institutions, but it is not divine.  We should not invest the courts with the authority to take a human life: such judgements are not ours to make.

The essential problem is that human affairs are complex by nature and complicated by circumstance.  Prosecutors become over zealous, excited more by the prospect of a major victory than by revealing the truth.  Defense attorneys, especially those for the indigent, are often underpaid, overworked, and sometimes unable to provide the vigorous defense that our system of justice depends on.  Witnesses have imperfect memories and their own motivations.  They sometimes make honest mistakes, identifying people incorrectly, and sometimes they lie.  Scientific evidence is subject to misinterpretation and contamination, and even our most respected institutions have given evidence that was later determined to be unreliable.  Even confessions are unreliable: sometimes they have been coerced.  Out of this morass, jurors are asked to put their own prejudices aside and decide what is true beyond a reasonable doubt.  It is not surprising that they get it wrong occasionally.

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This argument is the one that is carrying the day.  The Innocence Project has identified hundreds of cases where they were able to prove people innocent of the crime for which they had been convicted.  Faced with a system that had wrongly convicted so many, Governor Pat Quinn concluded that the system could not be fixed: he led the charge to abolish the death penalty in his state.  Illinois  became the nineteenth state to abolish capital punishment, the fourth to do so in the last couple of years.

Capital punishment was accepted by the framers of the Constitution, including those who wrote the “cruel and unusual punishment” clause of the Eighth Amendment, and it has been reaffirmed by the court.  Despite what Justice Stephen G. Breyer says in his dissent in Glossip v Gross, despite the fact that no other modern Western democracy still executes people, capital punishment is allowable under our constitutional for now, and probably in the foreseeable future.

However, that does not mean that capital punishment is here to stay.  Our culture is changing rapidly.  We should focus our energy on making sure this change is for the better. One way to do this is to support the Innocence Project: not only does it right the wrongs of our imperfect court system, but it keeps reminding the public that these flaws exist.  As public opinion comes around, we need to elect legislators who will abolish the death penalty, not because the Constitution requires it, but because it is the right thing to do for our society.  Only then will we rid our government of this barbaric practice.