By Ashley George – Not many would disagree that when police officers are afraid to do their jobs for fear of getting video taped doing something wrong, there is a problem with the overall security and safety of our communities and the nation as a whole. On October 23, 2015, during his speech given at the University of Chicago School of Law, FBI Director James Comey professed his support of the idea of the so called “Ferguson Effect” being a part of the reason for the recent spike in crime. So, what is the “Ferguson Effect?” The Ferguson Effect is a theory that claims that police have decreased their enforcement efforts due to increased public scrutiny, which has lead to more crime.
However, one must ask why police are so fearful of the increased public scrutiny if they are conducting themselves in the proper manner? Do police believe that the officers involved in these high profile cases were in the right? Even in the Walter Scott shooting? One Deputy writing an opinion piece for the New York Post states, “‘Ferguson’ has become the latest defense for committing crime, often invoked by people we arrest and their loved ones. Sadly, this feeling has not only infected the normal criminal element that I expect that behavior from, but even seems to be affecting middle-class families.”
In response, police departments across the country have been implementing new police body-cam and dash-cam policies. It seems most law enforcement leaders and civil liberties advocates believe the cameras will give officers a way to record events from their point of view at a time when citizens armed with cellphones are actively scrutinizing their every move. But the guidelines on the use of these cameras are still in the works and unlike the cellphones of private citizens; police body-cams raise a lot of concerns for privacy issues. For example, should the body-cams be recording when an officer enters a person’s home? Without clear guidelines there is a chance that the use of these cameras may backfire and cause more distrust if the public believes officers are only using the cameras when it is beneficial for them.
For example, in June 2015, South Carolina became the first state to pass a law that mandates body-cams in every police department, but the footage will not be considered public record and will not be available for public view. While criminal defendants and civil litigants will have access to the videos as their case develops, the police have the discretion of deciding if and when the video is released to the public.
Another example is that, in July 2015, Florida also passed a law that excludes public access to police body-cam footage. The law includes a privacy exception preventing disclosure of body-cam footage, including footage taken inside a home, at a hospital, or at the scene of a “medical emergency.” Additionally, there is a debate over the audio captured in videos taken my bystanders. The government argues that the audio recording is a violation of Florida wire-tapping laws, but the counter is that, when an incident takes place in a public space, how much privacy can police really claim? It is now clear that police body-cams will likely not be the end of public scrutiny if the police dictate who can see the footage and when.
Unfortunately, public scrutiny and distrust of the police is not new in some communities. Ever since the “War on Drugs” began, there has been an extremely drastic increase in the number of people incarcerated and change in the demographics that make up the population of those incarcerated. In 1968 there were fewer than 190,000 prisoners in the United States, the majority of whom were white. Today, 2.3 million people are in prison or jail and nearly 7 million under some form of correctional supervision. But the most devastating effect is on the African-American community where men are 10 times more likely to be incarcerated than white men; in fact, nearly 1 in 5 African-American men are incarceration.
Moreover, during the 1960s and 70s, while the Supreme Court expanded individual rights with decisions focused on unreasonable search and seizure and coerced confessions leading to Miranda rights, the Court has since limited those protections by upholding decisions that limit the rights of the accused and expand the authority of police and guards to use force, to conduct searches and to detain, which lead to policies like stop and frisk.
Combine mass incarceration and unfair usage of the expansion of police power and we begin to understand why certain communities, particularly communities of color, have strained relationships with police. As Jonathan Smith writes for the Washington Post, “Families have been destroyed, leaving a legacy of generational poverty and poor prospects for children. Once released, formerly incarcerated persons face often insurmountable barriers to employment, education and housing. . . .By criminalizing a large segment of the community and depriving African American men of opportunity and the chance for success, public safety has been placed at risk.”
This brings to light the importance of The Sentencing Reform and Corrections Act of 2015. Among many provisions in the act is the provision that addresses mandatory sentences for prior drug felons, specifically eliminating the three-strike-to-life provision. Unfortunately, this act only covers federal criminal sentencing. The individual states will continue to have discretions for sentencing of violations of their state laws. Moreover, the act does not eliminate the mandatory minimum drug-sentencing regime completely but, despite its limited scope, this is a step in the right direction and correcting the injustice the criminal justice system has shown communities of color.
Lastly, New York is going above and beyond in their criminal justice reform with the “Ban the Box” campaign and the Fair Chance Act that went into effect on October 27, 2015. This act bans employers from asking questions about criminal history on job applications and during job interviews and limits when a background check can be conducted. Given the fact that the high recidivism rate is in many ways due to people with prior convictions having an extremely hard time obtaining work, we can be hopeful that the Fair Chance Act will provide people with prior convictions the opportunity to reintegrate and become a productive members of society.
Overall, whether or not the “Ferguson Effect” can be contributed to the spike in crime (though data shows it does not), it has succeeded in bringing public attention to the unequal treatment given to certain segments of our population by both police enforcement and the criminal justice system as a whole. But more importantly, the civil unrest over this issue can no doubt be viewed as a potential threat to public safety and security especially if law enforcement officers are becoming reluctant to do their jobs.
