James and Konda: The Time Has Come for a Police Crimes Unit

The Coalition for Justice and Accountability (CJA) came into existence in 2003 after Bich Cau Thi Tran was shot and killed by San Jose police Officer Chad Marshall.

In the 17 years since its founding, the CJA been an advocate for humane policing practices including the banning of the use of Tasers by law enforcement. Members of CJA have participated on panels, addressing police misconduct, Taser task forces, city councils and other public bodies throughout the Bay Area. CJA has conducted workshops on police misconduct and also on the inherent dangers of Tasers.

The brutal, almost 9-minutes-long public police torture and murder of George Floyd on May 25, set off, yet again, a reexamination of both the history of police violence targeted at African-Americans, and the present moment in our history of more of the same endless police murders. Nothing seems to change, except the names of the victims.

Our nation had a similar racial justice and police violence reckoning after another very public series of police murders. Eric Garner’s murder on July 17, 2014, and the murder of Michael Brown on Aug. 9, 2014, set that spark.

Sadly but predictably, there have since been countless other extrajudicial police murders, of Black men and women. And almost without exception, charges are not brought and almost never do convictions result.

After each police murder, there are renewed calls for police reform, body-worn cameras, bans on choke holds, ban on Tasers, demilitarization of the police, better vetting in the hiring process of new police, civilian review boards with more teeth, independent police auditors, and the wholesale review of all police practices.

But nothing yet has come even close to ending the cycle of police violence.

Uninterrupted for 400 years—from the beginning of American policing with its roots deeply tied to slavery and slave patrols—law enforcement and related institutions have shown an unrelenting desire to punish, exclude, segregate and control African-American bodies and souls. Their actions perpetuate white power and white supremacy—ideologies deeply embedded in our culture and institutions.

Most certainly such ideas are embedded in our criminal injustice system, reflected not only by endless police killings of people of color, but in a system of mass incarceration—one that dwarfs that of the rest of the world and grossly, disproportionally cages African-Americans and other people of color.

To quote the late James Baldwin, whose words from a 1968 interview with Esquire were recounted in Eddie S. Glaude JR’s recently released book “Begin Again: James Baldwin’s America and Its Urgent Lessons for Our Own”: “In not trying to accuse you, you know. That’s not the point. But you have a lot to face … All that can save you now is your confrontation with your own history …. which is not your past but your present. Nobody cares what happened in the past. One can’t afford to care what happened in the past. But your history has led you to this moment, and you can only begin to change yourself and save yourself by looking at what you are doing in the name of your history.”

If our country is to survive, the time is now to confront our long and unabated history of race based police violence.

Policy Recommendations

Absent a complete defunding or abolition of police departments, we must have concrete and measurable ways to hold cops accountable for their violent and racist behavior. Reform alone simply is not sufficient. History has repeatedly taught us this lesson.

Police might, however, change their behavior if they see that they will not be handled by prosecutors with kid gloves and are instead treated like any other community member by being charged, prosecuted and, if the evidence warrants as much, convicted for their violent crimes and sent to jail. If that happens, then faith in the criminal justice system may finally have a chance to develop in communities that for too long have been at odds with a system that has given them no reason to trust it.

How Do We Get There?

Every district attorney in this country must develop a robust police crimes team. This team must be fully independent of law enforcement and be given the sole ability to prosecute without political pressure from police unions or elected officials. 

The police crimes team would be a multidisciplinary unit made up of retired police officers, former prosecutors, experienced investigators, former criminal defense attorneys, former victims of violent police crimes and academics whose specialty is the history and practice of policing. Each member would be trained in the nuance of appropriate police practices and conduct that crosses the line from good policing.

This unit would also be tasked with the duty of taking to jury trial each of the cases that the police crime team files. This would avoid the “trial for optics only syndrome.”

In the few deadly force cases that are actually taken to trial, it is often a mismatch by design. District attorneys, with no special unit trained to take on defense attorneys representing police are often outgunned in court.

No surprise, then, that—more often than not—police who engage in deadly force and are actually charged still manage to walk free after a jury trial. The establishment of a robust police crimes team will finally even the odds for conviction. 

What Will it Actually Look Like? Where Will it Be Housed?

The Police Crimes Unit (PCU) must be located off the DA’s campus and away from nearby police departments. Internal firewalls are insufficient. The goal must be no day-to-day contact between members of the unit and other members of the DA’s office or members of law enforcement generally. The unit must be staffed with members who agree with this separation requirement as a matter of professionalism and principle. The unit must be entirely independent both physically and in mindset.

The name of the unit must be readily recognizable as a Police Crimes Unit where members of the public know this is the place they can go to lodge complaints against police, without any fear of intimidation, and that the office is dedicated to providing a safe space for such complaints, and where community will trust that decisions made re their complaints, by the PCU, have the feel and reputation of integrity and independence.

Who will be selected members of the PCU is key. We suggest that the DA be one member of the committee, a local police chief be another, a defense attorney or pubic defender -- but the majority of the selection committee should be made up of members of local grassroots and non-profits who have a long record in the community of working to end police abuse in all of its forms. In other words, even though key institutional criminal justice players will have a part in the selection process –committee members from organizations that represent communities historically targeted by the police must make up the majority of the selection committee. African Americans and other people of color must also be prominently represented on the committee.

Aram James is a retired Santa Clara County deputy public defender, a member of CJA and a co-founder of the Albert Cobarrubias Justice Project (ACJP), a grassroots legal advocacy organization located in San Jose. You can reach him at [email protected].

Richard Konda is an attorney and executive director of the Asian Law Alliance and the chairperson of the Coalition for Justice Accountability (CJA). Konda and James have challenged the Use of Tasers, and other forms of police misconduct by law enforcement for more than a decade. You can reach him at [email protected].

(Above image is from a rally in San Jose after the murder of George Floyd and in honor of those who have been killed by police in Santa Clara County.)