Commentary
July 9, 2015

Policing in America: setting the standard

By Lisa Chalidze

The world is a messy place. We ask our police officers to keep cleaning it up. It’s a hard job to do well, and easy to do poorly. Often it’s the poor choices that make the news. This presents us with a difficult choice of our own: Do we respond to the unfairness of ignoring the good choices of the police, or do we support the useful debate that is sparked by criticism of the bad choices?

Between Ferguson, Staten Island, Baltimore and South Carolina–all locations of highly-publicized police killings of unarmed people–American policing is in a media spotlight. These cases are lumped together by outcome, regardless of the difference of circumstances in each case. Before rushing to judgment, though, let’s try and figure out by what standard we should be judging our officers.

International standards are at the heart of a recent report by Amnesty International. Amnesty encourages open debate on painful issues: “An aroused public opinion is a powerful weapon.” On June 18, it released a report condemning American rules on lethal force by police as allowing “arbitrary deprivation of life under international law.”

But what of our own standards? The Fifth and Fourteenth Amendments to the U.S. Constitution prohibit the federal and state governments (which includes the police) from depriving any person of life, liberty or property without due process of law. In 1985 the American Supreme Court instructed us that deadly force may be used against a suspect who “poses a threat of serious physical harm, either to the officer or to others.”

Closer yet to home, our Vermont Legislature has written that a civil officer “shall be guiltless” for killing a person “in the just and necessary discharge of his or her duty.” The Vermont Supreme Court has supplied a definition for “just and necessary”: it means “belief of imminent peril and of need to repel that peril with deadly force.”

Our constitutional tradition has been a great influence on the development of international law. Sometimes the influence goes the other way, too. The U.S. Supreme Court has spoken of “values that we share with a wider civilization” in banning criminal punishment for homosexual conduct. It has agreed with the “world community” in denying states the power to execute intellectually challenged persons.

Perhaps there is more common ground than we think.

Yet we must be cautious in treading too hard on foreign soil. Amnesty International recommends fixing the situation through rewriting all state statutes across the country to comply with the international standard.

Unlike most other countries, though, the United States is “federalist” in nature. Federal power has grown greatly over the past century, but we are still 50 “united” states, not one unified state. As the brilliant Justice Brandeis observed more than 80 years ago: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.”

What’s more, our “laboratory” is not merely experimental. Unlike international law, our legal system is a living organism pulsing with real power: the power to criminalize, to judge, and to execute. This is a huge responsibility – much weightier than formulating abstract standards.

Clearly, there is no easy answer to use of deadly force. But the freedom of American states to try different solutions to hard problems helps prevent the “injustice” that Amnesty identifies as the seed of conflict. In this sense, imposing the One True Standard may add to the problem, not solve it.

Amnesty International quotes the eloquent words of a lost victim: that it is “an enviable but very difficult task to live through a history as a human being.” Our police officers, in the civilian trenches, are sharing in the task of trying “to live through;” so are their suspects.

Lisa Chalidze is a lawyer and chairwoman of the Criminal Justice Division at College of St. Joseph in Rutland. She lives in Benson.

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