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Opinion New Texas law allows for separate courts when police are accused of crimes

The Texas legislature just passed a law that would allow counties in the state to create “diversion courts” for police officers and other first-responders who are charged with crimes but can plausibly argue that job-related mental illness contributed to their misconduct. From the Texas Tribune:

The lawinspired by similar courts available to veterans, was pushed by one of Texas’ largest police unions, and it sailed through a Legislature eager to help law enforcement in the year following a Dallas shooting that left five police officers dead. But at least a few county judges and experts say the courts seem unnecessary or concerning, and many large counties don’t appear interested in setting them up anytime soon.
Starting in September, counties will be able to establish a specialty court for law enforcement officers, firefighters, prison guards, county jailers and paramedics charged with any misdemeanor or felony. The law focuses on those who suffer from a brain injury, mental illness or a mental disorder — such as post-traumatic stress disorder — that they got from their job. Eligible defendants could bypass criminal prosecution and instead go into a treatment-based program specific for each case.

Paradoxically, this law is both a really good and a really bad idea. Let’s start with the easy one — why it’s bad. It’s bad because it means that in counties that adopt the measure, the law will treat first-responders — and cops in particular — differently than it treats everyone else. That will reinforce the notion that cops are above the law, a mentality that contributes to police brutality and misconduct and poisons the perception of police officers in the communities they serve. Why should a police officer be able to claim PTSD to escape criminal charges for a savage beating but not, say, a teenage kid from a high-crime neighborhood who has witnessed a murder or two, or someone who grew up watching his father beat his mother?

That brings me to why this law is a good idea. I’ll let the legislator who wrote the bill explain.

“I think this allows our first responders, if they’re suffering from a mental disorder, it allows them to get the help that they need so they can get back in society rather than send them through the criminal system,” said state Rep. Charlie Geren, R-Fort Worth, who authored the bill.

I love this quote, because it beautifully captures what’s missing in the debate over how the criminal-justice system treats cops who are accused of crimes. We’re certainly seeing a trend in which prosecutors have become more willing to charge police officers with crimes, particularly in cases in which there’s damning video. But we’re also seeing prosecutors go out of their way to be fair to those cops, judges who go out of their way to ensure that the officers have a fair crack at justice, and juries that refuse to convict unless the evidence is ironclad and overwhelming. In many cases (but certainly not all, and certainly not the most recent high-profile example), an acquittal may well be the correct charge, given the evidence. That doesn’t mean the police officers’ actions were justified in these cases. Many should still lose their jobs. Many were also likely negligent — and we certainly need to improve the doctrine of qualified immunity.

But criminal culpability is a different thing. We need to be certain of guilt before sending someone to prison. In a world where everyone gets a fair crack at justice, the fact that juries (and in some cases judges) are reluctant to convict cops without evidence beyond a reasonable doubt speaks well of our system.

But of course we don’t live in a world where everyone gets a fair crack at justice. And that’s why it’s so infuriating to some when cops get let off the hook. When a police officer gets indicted, it’s typically only after agonizing, months-long deliberations on the part of the prosecutor. The grand jury usually gets both sides of the story, sometimes even a police-friendly version. They certainly don’t get only the most damning one, as is often the case. And despite their reputation for rubber-stamping prosecutors’ wishes, grand juries tend to be much more skeptical when a prosecutor wants to charge a law enforcement officer.  Cops will usually get a top-notch criminal defense, often paid for by the local police union. They’ll get to hire their own expert witnesses to counter those put on by the state. They get judges who bend over backwards to ensure a fair trial and a fair outcome. And they get juries who are not only impartial but also who are ready to jump at any reason to avoid finding this particular defendant guilty. The appellate courts tend to be deferential to cops as well.

When all of that results in an acquittal, a hung jury or an overturned guilty verdict, the rage felt by police critics, racial justice advocates, and members of minority and marginalized communities isn’t over the fact that the cop got a fair shake, it’s that the cop got the sort of justice that everyone deserves, but that few typically get — particularly in those minority and marginalized communities.

There’s a good argument to be made that as armed government agents entrusted to arrest, detain and kill, police officers should be subjected to a higher behavioral standard than the general public. There’s also a good argument that as citizens themselves, police officers should be subjected to the same standard as the general public. The least convincing argument, at least in a free society, is that the armed government agents given the power to arrest, detain and kill should be held to a lower standard of conduct than the general public. But that’s often how it seems, and these sorts of laws not only contribute to that problem and the public perception of it, but also they imply that in spite of all the available evidence, cops are getting short-shrifted today, and deserve even more advantages and protections than those they already get.

Even as Texas counties now ponder whether to show mercy on officers who commit crimes caused by mental illness, consider that the state of Virginia is preparing to execute William Morva, a man who is clearly and severely mentally ill. Interviews with Morva’s former classmates by the Intercept depict a man who began spiraling into a pit of delusion and despair in his late teens and was never properly treated. (Disclosure: The Intercept article about Morva was written by my wife, Liliana Segura.) He attended his own father’s funeral barefoot and disheveled. Morva came from a family with a history of mental illness. He was initially arrested and jailed after a meager attempt to rob a convenience store. He was then housed in a crowded jail for more than a year, all while his illness continued to go untreated. He eventually tried to escape. In the process he killed two police officers — the crimes that landed him on death row. Morva obviously poses a genuine threat to public safety, and he should be treated in a facility and in a manner that ensures he won’t harm anyone again. But once you acknowledge that mental illness is a barrier to criminal culpability, I don’t see how you start drawing lines between someone like Sean Groubert and someone like William Morva. At the very least it ought to be enough to halt Morva’s execution.

Perhaps given his crimes, Morva isn’t the best example. There are countless others. According to a 2014 study by the Treatment Advocacy Center, as of 2012 all but six states had put more people with severe mental illness in prison or jail than in psychiatric hospitals. Collectively in the United States, there were more than 350,000 people in jail or prison with severe mental illness, more than 10 times the number in psychiatric hospitals. A subsequent study in 2016 concluded, “The justice system continues to criminalize individuals with mental illnesses and places a huge burden on county jails that house them. Unless a better-functioning public mental health treatment system that focuses on community-based treatment of individuals with mental illnesses is implemented in the U.S., this problem will only get worse.” The Post reported in 2015 that according to the Justice Department, “about 15 percent of state prisoners and 24 percent of jail inmates report symptoms that meet the criteria for a psychotic disorder.”

Let’s go back to the quote above from Texas state Rep. Geren. Take out the phrase our first responders. Replace it with people. Doesn’t it still sound like a fair, just and humane way to treat those suffering with mental illness?

The problem with so many of these “blue lives matter” laws isn’t that lawmakers want to ensure that police officers accused of crimes are treated fairly, humanely and with dignity. It’s that it doesn’t seem to occur to them that the rest of the public deserves to be treated that way, too.