I believe words matter...sometimes.
But sometimes, words are stupid.
For instance, remember when Republicans were upset because President Barack Obama wouldn’t say the words “radical Islamic terrorism” because Obama was kinda busy hunting down Osama Bin Laden and killing him?
That was stupid.
Then again, I am a writer and words are the foundation of my profession. If I were a doctor, I’d believe that how people treat their bodies was of the ultimate importance. If I were a police officer, I’d believe that brutality, the disproportionate policing of black people and immunity from prosecution were all that mattered.
Tim Scott (R-S.C.) is a politician, which means he uses words. He is a black man, so he knows about police brutality and discriminatory police practices. If he were truly doing his job, he would care less about words or politics and focus on ending the state-sanctioned violence that is disproportionately dispensed upon black bodies.
But, for some reason Scott won’t acknowledge that there is systemic racism in the way officers police black people in America. Is he afraid to say it? Does he not believe it exists? I can’t figure it out.
So I asked him.
“I’m not a philosopher so I don’t sit back and think through these definitions as much as others do,” Scott told The Root. “There’s racism in America and I do not think we are a racist country. I think there are racial outcomes in policing, even though I don’t think police by and large are racist. I think that we have pockets of racism within the police departments, but I think most people who become cops do so for the right reasons.”
Wait...If there are “pockets of racism within police departments,” wouldn’t that make police racist? And while the existence of “racism in America” might be the best way to define a racist country, Scott doubled down on his position by insisting that the words “systemic racism” aren’t as important as eliminating the phenomenon that can best be described as...Well...systemic racism, explaining:
I think the definition is important, but more important is that I’m in a position to do something about it. So, because I can see the patterns that are racial outcomes, from my perspective, I’m in a position of bringing those patterns to light and then punishing those departments who seem to have that practice in that pattern. So for me, you know, I’ve, I’ve struggled to come up with a concise definition of what, what systemic racism looks like in any of these sectors. But for me, I don’t struggle with it long because I have the ability to make a difference so that the racial outcomes make it harder to answer that question.
Okay. Now I understand. Tim Scott, who is a politician not a definition-maker-upper or a philosopher, seemed to be using “racial outcomes” as a placeholder for “systemic racism.” So I decided to try it. Using his unique congressional thesaurus, I replaced “racism” with his handpicked senatorial synonym and asked him if he sees disproportionate outcomes in policing in law enforcement for people of color, specifically black people.
“There’s no doubt that my answer is yes,” Scott said. “And you are two and a half times more likely to be killed by law enforcement if you are black than if you’re white. That to me only reinforces the fact that there is a pattern that exists. There’s a lot of statistics that fly in the face of what I think is obvious to the naked eye. People tell me I’m wrong, but I’ve talked to a lot of people around the country. African-American professionals who have the same experience that I’ve described. So it’s hard for us to be convinced otherwise, even though people will tell me that I’m dead wrong on this issue.”
There’s almost no way he doesn’t know he just gave a precise summary of how systemic racism works. He almost sounds like he intentionally refuses to acknowledge the words. But should the words matter if Tim Scott does something about it?
And can he do anything about it?
I wish Tim Scott knew how many black people police kill every year.
I wish anyone knew.
In 2014, for the first time in history, the Obama administration tasked the FBI with counting how many arrest-related deaths happened that year. When the Bureau of Justice Statistics issued its report, it found that the FBI had been under-reporting the number by an average of 545 deaths per year.
That number was wrong.
The Washington Post’s “Fatal Force” database is the most frequently cited source for police killings because they are one of the few media sources with the resources and dedication to continue the ongoing research. Killed By Police also keeps a database. The Guardian tried it for two years. Bowling Green’s Phillip Stinson had an expansive police crime database that eventually ended. After comparing all of the publicly available data, we determined ... well ... that no one knows how many people police kill each year.
The reason the number remains a mystery is that law enforcement agencies, politicians, lobbyists and the good ol’ NRA have gone to extraordinary measures to prevent government agencies from counting how many people die at the hands of law enforcement agencies. Even when organizations attempt to count the number of people who die in police encounters, the data is sometimes flawed and often incomplete.
For instance, the Washington Post’s database only lists people who were shot and killed by officers, so George Floyd isn’t counted, because he was choked to death. The Post only counts people who were killed by on-duty officers, so Botham Jean isn’t listed. Eric Garner isn’t listed because he wasn’t shot. For the past three years, The Root has done a complete accounting too, but we are probably wrong, too.
For years, The Root has reported on Scott’s efforts to pass an important piece of police reform. Named after one of his constituents who was famously shot by police officer Michael Slager, the Walter Scott Notification Act required every law enforcement agency in America to report all police shootings and deaths to the federal government. According to the bill, any state which refused to report would face a percent reduction in federal law enforcement grants and funds. Information included by each state would include:
- The victim’s name, race, age, and sex
- The officer’s name, race, age, and sex
- Whether the victim was armed or not
- A description of the weapon used by law enforcement
- A detailed description of the event
- The finding from law enforcement as to whether the shooting was justified or not
Scott tried to pass the proposal as a standalone bill in 2015, to no avail. When he attempted to attach it to funding legislation, it failed. In 2018, as the First Step Act worked its way through the Senate, Scott attempted to slide his much-needed idea in as an amendment to the groundbreaking criminal reform bill. But police unions whispered in the ears of his fellow legislators and once again, the Walter Scott Notification Act fell by the wayside.
It wasn’t just Republicans’ fault. There were enough votes for it to pass through the Senate if Democrats had just joined the bill’s Republican sponsors.
So, in 2019, Scott stopped trying.
Then Derek Chauvin knelt on George Floyd’s neck for eight minutes and 46 seconds.
Following the protests over the death of George Floyd, Senate Majority Leader Mitch McConnell (R-Ky.) selected Scott to lead their party’s police reform efforts. If there was anyone who understood the issue, they figured Scott would.
On Wednesday, Scott announced the Just and Unifying Solutions To Invigorate Communities Everywhere Act of 2020 or the ‘‘JUSTICE Act’’ (Republicans love acronyms). The act has 11 important provisions:
- Use of Force reporting: Basically it extends Scott’s Walter Scott Notification Act, to include any use of force, as well as incentivizing bans on chokeholds, no-knock warrants and penalizing officers who make false police reports.
- Funds body-worn cameras: So we can see what officers did
- Law Enforcement records retention: Incentivizes sharing of disciplinary records between departments when they hire officers
- Justice for lynching: Makes lynching a federal crime.
- Study black boys and men: Commissions a report on “conditions affecting black men and boys, including education, health care, financial status, and the criminal justice system as a whole.”
- Police training: Funds de-escalation, mental health awareness and duty-to intervene policies.
- National Criminal Justice Commission Act: Establishes a commission to review the entire criminal justice system and provide best practices recommendations.
- Law Enforcement Agency Hiring and Education: Funds to recruit and train more non-white officers
- Best Practices and Studies: Determines a national standard of best practices for policing
- No sex: Makes it unlawful for a federal law enforcement officer to engage in a sexual act while arresting or detaining people (yes, this is a thing).
- Emergency Funding: Offers to fund for police agencies.
And how does Scott plan to do this?
Well, he wouldn’t dare use those dirty Democratic ideas like “defund the police.”
Instead, he wants to use the same mechanism that he introduced in the Walter Scott Notification Act. The bill would enforce its provisions by reducing federal grant money that is already available to state and local law enforcement agencies. Scott wants to prevent departments who don’t comply with the law from continuing to receive these funds.
If only there was a word to describe what Scott’s Republican bill would do to police. I wonder what would happen if I Googled it.
But the Democrats unveiled their plan first.
On June 8, Democratic members of Congress, draped in their finest kente cloths, unveiled The Justice in Policing Act of 2020. The bill bans chokeholds, sets use of force reporting and…Well, you can just read the above synopsis of the JUSTICE Act because — aside from the ending qualified immunity— the Republican plan is almost a copy and pasted version of the Democratic plan, although the Democrats use-of-force reporting mirrors the Walter Scott Notification Act.
“Neither plan is great,” explains The Nation’s resident constitutional authority. Elie Mystal.
Mystal is a Harvard law graduate who spends most of his time excoriating Democrats for their timidity and Republicans for their collective racism. “The Democrats already had a plan, he told The Root. “If they had just done what Cory Booker and Julián Castro wanted to do to end qualified immunity and force police officers to stop being racist, we wouldn’t be here today.”
But no one did.
The most notable difference between the Democratic plan and the Republican plan is that Scott doesn’t outright ban the chokeholds that killed George Floyd and the no-knock warrants that resulted in Breonna Taylor’s death. To be fair, Scott has a great reason for not including these reforms:
Yes, sometimes words are stupid.
However, the words in the Constitution are important, which is why we created an entire court to parse and dissect every phrase and comma in America’s founding document. For instance, nearly every ideological difference between the two major American parties in the U.S. can be boiled down to the interpretation of the 10th Amendment, which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Basically, the idea that the federal government’s power is limited to the things spelled out in the Constitution is the basis for almost every inter-party political debate. The debates over slavery (Confederate traitors called it “heritage”), segregation (Mississippians calls it “states rights”) women’s bodies (religious zealots call it “pro-life”) and even marijuana legalization (Snoop Dog calls it “sticky icky”) are, essentially, debates over whether the federal government can pass laws that aren’t spelled out in the Constitution.
The federal government has very little input over the laws that govern most of our lives, which is why second-degree murder in one state is manslaughter in other states. And, as it relates to police brutality, Congress has very little control over the laws that govern local and state police. At most, they can offer grants and funds for training and deny funding and grants to agencies that don’t follow the rules.
So how can the Democrats ban chokeholds and Republican’s don’t bother?
Because they can’t.
Most media personalities who are reporting on the bills haven’t pored over the text of the proposals. If they had, they’d notice that the Democratic bill de-incentivizes the practice for local and state authorities by using the same defunding mechanism as Scott. And while news outlets have described Scott’s plan as “narrower,” his proposal’s penalties eventually reach 20 percent while the Democrats withhold 10 percent. The Democrats’ bill only outlaws chokeholds for federal officers.
But who’s worried about Secret Service agents and Treasury officers choking motherfuckers? Federal marshals and ICE officials often use no-knock warrants but the vast majority of police brutality come from the state and local levels because the extensive training required of most federal law enforcement agents already includes de-escalation techniques, use-of-force reporting and body cameras.
The JUSTICE Act also provides a better mechanism for holding individual local and state agencies accountable, by micro-targeting localities that don’t implement police reform with increasingly harsher penalties, as Scott’s Deputy Chief of Staff Allyssa Leigh Richardson explained before warning me that it was a “complicated mechanism that we had to create to hold every agency accountable.”
Without the punishment of the law, a higher financial penalty for agencies that do not comply with reform regulations is the only tool available to Congress for enforcing reform. And, because police chiefs and sheriffs are terrified of losing funds, they are more likely to get rid of officers who regularly break the rules if the individual departments are threatened with the loss of funding.
As someone who is not a huge fan of the Republican Party or its tactics, it might pain some to hear this as much as it pains me to say it, but the truth is, the GOP bill is more likely to stop cops from killing black people.
But, as Mystal points out, it’s hard to pat Tim Scott on the back for confronting an issue that his party has exacerbated. Nor should the Democratic party be immune for passing the harsh “law and order” statutes that resulted in racialized policing.
“For years, the difference between Democrats and Republicans on the issue of policing was negligible,” Mystal told The Root. “ It wasn’t until Eric Garner that white people said: ‘Oh, wait...what?’ And none of what either side is offering is enough. Neither plan goes far enough to end systemic racism in police departments.”
Or as Tim Scott calls it, “outcomes.”
But here is the secret that Tim Scott knows:
There is a way for the federal government to reform the police without defunding it. The words in the Constitution actually provides a mechanism that could force police reform and impact systemic racism.
If someone could prove that the practices of an individual police department, or law enforcement agencies collectively, disproportionately violate black people’s civil rights, then they could use the provisions of the Civil Rights Act to force police reform. But they would have to have some kind of irrefutable proof.
For instance, if someone collected the use-of-force data from every law enforcement agency in America and the self-reported statistics showed that black people were two-and-a-half times more likely to be shot, killed or suffer from police brutality, that would almost definitely do it.
And that may be the true reason that a certain senator has been on a seemingly unwinnable personal crusade. But of course, he’d never say those words.
Because, like most black people, Tim Scott knows what matters most:
“I just want to find a way to create a better outcome for my nephew and my cousins, who are 3 and 4 years old, don’t have to worry about systemic, systematic or whatever you guys call the crap that you and I have to worry about,” Scott explained, adding
“I’m far more interested in improving the outcomes of people that look like me because I was black before I got to the Senate and I’m going to be black after I leave the Senate.”