Post-Ferguson progress, issues

8/14/2015, 7:32 a.m.
One year ago, on Aug. 9, 2014, a white Ferguson, Mo., police officer shot and killed Michael Brown, an unarmed …

Claire Gastañaga

One year ago, on Aug. 9, 2014, a white Ferguson, Mo., police officer shot and killed Michael Brown, an unarmed black teenager. The shooting and law enforcement response, including the deployment of military equipment against largely peaceful protesters and a blue wall of silence around the details of the shooting itself, left the world wondering whether they were watching events unfold in America or under some authoritarian regime.

It is clear now that America has a criminal justice system that disproportionately arrests, prosecutes, incarcerates and kills black people. It is a system that encourages the deployment of military equipment and tactics designed for the battlefield in our communities. It is a system where the surveillance state targets organizations engaged in peaceful protest. It is a system where basic American principles such as government transparency and accountability do not exist. It is a system that must be reformed and over which civilian authority must be restored.

Real reform will not be easy. The current system is enabled by an unaccountable law enforcement culture that creates an “us” (law enforcement) versus “them” (the public, particularly people of color) mindset. This mindset allows law enforcement to view certain communities as the enemy and civilian oversight as meddlesome. And it will continue until this mindset is replaced by one that prioritizes constitutional policing and respect for the sanctity of human life.

The news is not all bad, however.

First, you can’t fix a problem you’ve been allowed to ignore. The shooting of Michael Brown and the law enforcement response brought the reality of our failed criminal justice system into living rooms throughout America. And, the response was clear — regardless of where one falls on the political spectrum, Americans do not accept a government that abuses its power. Ferguson is now a household name, and what it represents is part of the public consciousness. That’s a big deal.

The public awareness of what happened in Ferguson on the streets, in the City Council chambers and in the courts coincided with a growing movement of unusual allies focused on turning “tough on crime” into “smart on crime.” This movement includes groups as diverse as the ACLU and Koch Industries, Van Jones and Newt Gingrich. It recognizes that public safety is enhanced by a criminal justice system that provides practical, common sense solutions designed to foster safe and healthy communities.

This “smart justice” movement is gaining ground in red states and blue states, including Virginia where the “tough on crime” approach is no longer sacred. Virginia’s “tough on crime” laws have created a 735 percent increase in the Commonwealth’s incarceration rate since the 1970s and saddled taxpayers with an annual corrections budget exceeding $1 billion.

The surveillance state also has hit a snag. During the 2015 General Assembly session, we worked to pass new laws that will require law enforcement to get a warrant before it can use a drone or Stingray to spy on us, and strengthen the requirement to get a warrant before accessing real time cell phone tracking records.

Last week, the federal appeals court in Richmond extended the warrant requirement to historical cell phone records. The need to rein in the surveillance state is not just about abstract constitutional principles. As #BlackLivesMatter recently learned, federal Department of Homeland Security officials have been trolling public social media accounts, including Facebook, Twitter and Vine, to map and collect information on this peaceful movement. What we need law enforcement to do to protect our security and our liberty is simple — get a warrant!

While we’ve made some progress, much remains to be done to demilitarize law enforcement, restore the constitution and the community to policing and address the racial injustices currently evident in our law enforcement and judicial systems that lead to the unjustified use of lethal force and racial profiling. Until state and local lawmakers force law enforcement to respect civilian oversight, act in a transparent and accountable manner and engage in constitutional policing, injustice will continue to be the most visible hallmark of our criminal justice system. While some Virginia law enforcement departments are heading in this direction, until these changes become mandatory statewide, black lives in Virginia will remain at risk and our communities will be less safe.

The writer is executive director of the ACLU of Virginia.