This is the day for the sound of the trumpet for the call to organize this country, as the conditions are ripe for the people to bring hope into the world, bring force of life out of chaos. I am making this call by the sound of this legal trumpet to all Americans of every race and creed, by more particularity to the religious leaders. The internal decay of racism must be confronted.
To say that this nation is under a siege from within would be an understatement. There are no readily apparent solutions, but there might be opportunities at hand during this period to begin a path towards change and resolution. My thinking is that the religious leaders of all congregations, Jewish, Christian, Muslims, Buddhists, and others should come together in solidarity. The leadership should be the African Amirian religious leaders. They know first-hand the stories of injustice, lack of freedom and sense of the community from oppression. It is my opinion this nation cannot trust the current administration of government to advance this path. Simply put, there is too much strife spewing from the White House to accomplish laudable goals. One good example is that in July 2017, U.S. President Donald Trump said police officers should "rough people up more" and not to worry about injuring suspects during arrests. That rationale has not changed over time. That mindset may have been utilized by some law enforcement units, contrary to policy. The usual recipients of that action are those African Americans who are seized within the meaning of the 4th Amendment for criminal investigation. Yesterday, National security adviser Robert O'Brien denied in an interview that systemic racism exists across the nation's police forces, arguing instead that "a few bad apples" give the impression of racism among law enforcement officers. I have been in the practice of law for over forty years, and I realized then, as I do now, racism exists, has existed, and will exist - not only in law enforcement, but also in the community, the courthouse and schools. What the untold story is that the courts are to blame too. Let me explain, as related by a colleague from Arkansas. Counties and states have been slow, if at all, in reining in discrimination by their employees, including policemen - they seldom, if ever, have any legal liability for the illegal actions of their employees because of the legal doctrine of immunity. Under the doctrine of official immunity, a public official is not liable to members of the public for negligence that is strictly related to the performance of discretionary duties. The doctrine of official immunity recognizes that society's compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public's business. Thus, if a law enforcement agency has a policy against choking a suspect, and that policy is not followed by the policemen, the agency or city or government that employs that policeman is immune from civil liability. In 1978 the United States Supreme Court in an opinion held that a government entity is not liable for the unconstitutional acts of its employees unless the government entity has a specific policy or custom which the employee was required to follow. Merely turning a blind eye or deaf ear to the violations of policy via the bad acts is sufficient to find the government entity not liable under the doctrine of immunity. Since 1978 the Supreme Court has rendered more decisions to further insulate city, county and state governments, making it almost impossible to obtain money judgments against them. There must be a change to get a good first start on the racism in America.
We must insist an end to the notion that a city, county or state does not have to concern itself about who they hire, how well they are trained and how well they are supervised. To present a defense all the city, county or state has to say is that the employee was not following protocol. Proving otherwise is near impossible. For example, Minneapolis has a specific policy prohibiting choke holds, yet that is exactly what happened to Mr. Floyd. Since he did not follow a city policy the city is likely not liable for his death, as a matter of law. Most cities, counties and states have policies which require police officers to intervene if another officer is engaged in an illegal act. Again, that would insulate Minneapolis from any liability for the three officers who stood by and watched Mr. Floyd get murdered since they were not following a city policy.
There are lawyers around this country who have worked hard to change these laws and they are often met with the argument that opening up cities, counties and states to liability for the actions of their employees would “open a floodgate of litigation.” Perhaps the religious leaders can convince the legislative bodies what the lawyers cannot. If we made that one change, cities, counties and states would be forced to actually implement policies and procedures which provide more protections to the citizens or open up their checkbooks like never before. Payment of money is a great deterrent to bad action.
To understand where we are as a nation, we should take a history lesson. In the mid 60s, there was a commission created by President Johnson. The wording of the report may be considered racist in today’s times. The Kerner Commission found that riots resulted from black frustration at the lack of economic opportunity. Martin Luther King Jr. pronounced the report a "physician's warning of approaching death, with a prescription.” The report's most famous passage warned, "Our nation is moving toward two societies, one black, one white—separate and unequal." The report was a strong indictment of white America: "What white Americans have never fully understood but what the Negro can never forget — is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it for life." We see it everyday in every legal venue. World without end.
Its results suggested that one main cause of urban violence was white racism. The report concluded that white America bore much of the responsibility for black rioting and rebellion. It called to create new jobs, construct new housing, and put a stop to de facto segregation in order to wipe out the destructive ghetto environment. In order to do so, the report recommended for government programs to provide needed services, to hire more diverse and sensitive police forces and, most notably, to invest billions in housing programs aimed at breaking up residential segregation.
Among other points, the commission's suggestions included: "Unless there are sharp changes in the factors influencing Negro settlement patterns within metropolitan areas, there is little doubt that the trend toward Negro majorities will continue." "Providing employment for the swelling Negro ghetto population will require ...opening suburban residential areas to Negroes and encouraging them to move closer to industrial centers..." "...cities will have Negro majorities by 1985 and the suburbs ringing them will remain largely all white unless there are major changes in Negro fertility rates, in migration settlement patterns or public policy." "...we believe that the emphasis of the program should be changed from traditional publicly built slum based high rise projects to smaller units on scattered sites."
The Law Enforcement Assistance Administration released federal funding for local police forces in response. Appointed by Johnson to serve as the commission's executive director, David Ginsburg played a pivotal role in writing the commission's findings. President Johnson, who had already pushed through the Civil Rights Act and the Voting Rights Act, ignored the report and rejected the Kerner Commission's recommendations. He felt that he had done plenty. In April 1968, one month after the release of the Kerner report, rioting broke out in more than 100 cities following the assassination of civil rights leader Martin Luther King, Jr.
To mark the 30th anniversary of the Kerner Report, the Eisenhower Foundation in 1998 sponsored two complementary reports, The Millennium Breach and Locked in the Poorhouse. The Millennium Breach, found the racial divide had grown in the subsequent years with inner city unemployment at crisis levels. The Millennium Breach found that most of the decade that followed the Kerner Report, America made progress on the principal fronts the report dealt with: race, poverty, and inner cities. Then progress stopped and, in some ways, reversed by a series of economic shocks and trends and the government's action and inaction. "Today, thirty years after the Kerner Report, there is more poverty in America, it is deeper, blacker and browner than before, and it is more concentrated in the cities, which have become America's poorhouses."
The U.S. National Commission on the Causes and Prevention of Violence (National Violence Commission) was formed by President Lyndon B. Johnson after the assassinations of Reverend Martin Luther King, Jr. and Senator Robert F. Kennedy. In one of its most important final report passages, the National Violence Commission observed: To be a young, poor male; to be undereducated and without means of escape from an oppressive urban environment; to want what the society claims is available (but mostly to others); to see around oneself illegitimate and often violent methods being used to achieve material success; and to observe others using these means with impunity – all this is to be burdened with an enormous set of influences that pull many toward crime and delinquency. To be also a Negro, Mexican or Puerto Rican American and subject to discrimination and segregation adds considerably to the pull of these other criminogenic forces.
The Violence Commission recommended new investments in jobs, training and education – totaling $20B per year in 1968 dollars. A long run "reordering of national priorities" was in order, said the Violence Commission, which shared the Kerner Commission’s moral vision that there could be no higher claim on the nation’s conscience. A majority of the members of the National Violence Commission, including both Republicans and Democrats, recommended confiscation of most handguns, restrictions on new handgun ownership to those who could demonstrate reasonable need, and identification of rifle and shotgun owners. "When in man's long history other great civilizations fell", concluded the Violence Commission, "it was less often from external assault than from internal decay…The greatness and durability of most civilizations has been finally determined by how they have responded to these challenges from within. Ours will be no exception.”
The policy message that emerged from the participants was clear. Using a public-private approach, efforts should be made to combine employment, community involvement and family to prevent crime; move away from a federal policy of increased incarceration; reverse the "trickle down" policy of federal anti-crime programs affecting neighborhoods to a "bubble-up" process emanating from the local level; and formulate a new cooperative role for police as supporters, not strictly enforcers.
The original Violence Commission predicted that we would have a city of the future in which the middle class would escape to the suburbs, drive to work in sanitized quarters, and work in buildings protected by high tech. Domestic tranquility is roughly the same [in 1999 as in 1969] in spite of the increase in prison building. On the other hand, we haven’t had an increase in justice. We have 25 percent of all our young children living in poverty. We have the greatest inequality in terms of wealth and income and wages in the world. One of every three African-Americans is in prison, on probation or on parole at any one time – and one out of every two in cities.
That is a direct result of the racial bias in our sentencing system and our mandatory minimum sentences. For example, crack-cocaine sentences are longer, and crack cocaine is used more by minorities. Powder cocaine sentences are shorter, and powder cocaine is used more by whites. The result is that our prison populations are disproportionately filled with racial minorities. Yet, at the same time, prison building has become a kind of economic development policy for [white] communities which send lobbyists to Washington.
My Black preacher friends are frustrated at the funerals of the young black youth for gang violence. They lament the crisis of jail and prison overcrowding which favors the white race, and works against the black race. The Millennium Breach was written by Fred R. Harris, Lynn A. Curtis, and other Eisenhower trustees. The Breach presents the Foundation’s position on practical policy and how to replicate the grassroots non-profit, inner-city programs that have been effective since the release of the original Kerner Report in 1968. It targets private and public policymakers and inner-city community practitioners.
The breach documents the following trends since the release of the Kerner Report in 1968:
From 1977 to 1988, the incomes of the richest 1 percent in America increased by 120 percent and the incomes of the poorest fifth in America decreased by 10 percent; In urban public schools in poor neighborhoods, more than two-thirds of children fail to reach even the "basic" level of national tests.
During the 1980s, child poverty increased by over 20 percent, with racial minorities suffering disproportionately. In 1998, the child poverty rate in the United States was 4 times the average of Western European countries
Over the 1980s and early 1990s, the U.S. tripled the number of prison cells and simultaneously reduced housing appropriations for the poor by over 80 percent.
In the early 1990s, 1 of 4 young African-American men were in prison, on probation, or on parole. By the late 1990s, 1 of 3 young African-American men were in prison, on probation, or on parole.
The report recommended the adoption of national policies based on what the Eisenhower Foundation believed to have been effective policies in education, employment, economic, development, race and criminal justice since the Kerner Commission. The following policies were recommended: fund the Head Start Program for all eligible children in pre-school. Replicate effective school and housing desegregation and renewing affirmative action. Create a national nonprofit "Corporation for Youth Investment" that will provide boys-and-girls-club-type safe havens after school for kids 6 to 16.
Reform public schools by restructuring academic programs; providing focused intervention for children with mental health problems; creating safe environments during the day and supportive nonprofit safe havens after school; increasing involvement of and assistance to inner city parents; reducing class size. Reorder the budget in the "War on Drugs" from 70 percent enforcement and 30 percent prevention and treatment to 50/50.
That being the short story of the prior WH administration efforts, we can see nothing has changed. In fact, in my opinion it has gotten worse. With the pandemic, and the government subsidy, it is the prevailing view that the “rich got richer, and the poor got poorer.” The majority of the government assistance went in large part to wealthy businesses and individuals.
The current administration is being run by a man who is hiding in a bunker, as he coitizes his upcoming opponent for laying in his basement during the pandemic. How has Trump responded to the widespread unrest following the murder in Minneapolis of George Floyd, a black man who died after a white police officer knelt on his neck for minutes as he was handcuffed on the ground?
Trump called the protesters “thugs” and threatened to have them shot. “When the looting starts, the shooting starts,” he tweeted. On Saturday, he gloated about “the most vicious dogs, and most ominous weapons” awaiting protesters outside the White House, should they ever break through Secret Service lines.
More than 41 million Americans are jobless. In the coming weeks temporary eviction moratoriums are set to end in half of the states. One-fifth of Americans missed rent payments this month. Extra unemployment benefits are set to expire at the end of July. What is Trump’s response? Like Herbert Hoover, who in 1930 said “the worst is behind us” as thousands starved, Trump says the economy will improve and does nothing about the growing hardship. The Democratic-led House passed a $3tn relief package on 15 May. The Senate has recessed without taking action and Trump calls the bill dead on arrival. The House has passed nearly 400 bills this term, including measures to reduce climate change, enhance election security, require background checks on gun sales, reauthorize the Violence Against Women Act and reform campaign finance. All are languishing in the Senate inbox, and those bills may never get to the desk of the president.
The Presidential tweets are not a path for governing, for unity, for peace. The leadership ignores the obvious. The leadership is geared mostly about getting revenge or fomenting violence against black protesters, accusing a media personality of committing murder, retweeting slurs about a black female politician’s weight and the House speaker’s looks, conjuring up conspiracies against himself supposedly organized by Hillary Clinton and Barack Obama, and encouraging his followers to “liberate” their states from lockdown restrictions. He tweets bogus threats that he has no power to carry out – withholding funds from states that expand absentee voting, “overruling” governors who don’t allow places of worship to reopen “right away”, and punishing Twitter for factchecking him. So, unfortunately for America we cannot rely upon this Administration to take any affirmative action. It is not coming, whether you support the President or criticize the President. Love or hate him, he will not be there during this crisis.
The only logical solution is for the Black pastors, the religious leaders of all color and the American who hates injustice, despises violence and disparity to come together. We need unity. We need peace. We need solidarity. We don’t need more doses of what has been distributed from this and prior administrations. The trumpet is sounding. I sit with great anticipation on who will respond to its call. We do not need to wait for the conditions to be ripe bring hope into the world, and bring the full force of life out of chaos. This might be your call.