The Injustice the DOJ Uncovered in Ferguson Wasn’t Racism

By Ian Tuttle

Friday, March 6, 2015

Occasionally even a blind squirrel finds a nut. And so, Eric Holder’s Justice Department has found an injustice. Only it’s not the one they think.

The Department of Justice’s “Investigation of the Ferguson Police Department,” released this week, has been widely touted as incontrovertible evidence that Ferguson law enforcement is systemically racist, its Jim Crow–era animus expressed in policing practices targeting Ferguson’s majority-black population — this even though the Justice Department declined to charge Darren Wilson for a civil-rights violation in the shooting death of Michael Brown. Moreover, it is “important to understand [the] Ferguson Report not as an aberration, but how white supremacy actually works.” So tweeted The Atlantic’s Ta-Nehisi Coates. No doubt the report will feature prominently in discussions of this weekend’s commemoration of the 50th anniversary of Selma’s Bloody Sunday.

But the report is hardly unassailable. As Manhattan Institute scholar Heather Mac Donald and many others have noted, the “disparate impact” criterion on which the report heavily relies compares the number of police interactions with blacks to the black population, when the meaningful statistic is the number of police interactions compared to the number of black lawbreakers. The report pointedly neglects that question. Of course, this is not to say racism is nonexistent in Ferguson. Certain bits of the corroborating evidence for the report’s allegations — noxious e-mails from Ferguson officials, for example, and the lack of disciplinary action taken against their senders — are repugnant.

But what the material in the report reveals is less a culture of racial animus than one of predatory government: “Ferguson’s law enforcement practices,” states the report, “are shaped by the City’s focus on revenue rather than by public safety needs.” In the interest of expanding its treasury, Ferguson has employed its police department — 58 officers, policing a town of 21,000 — as an enforcer of the myriad municipal regulations that, rigorously enforced, nickel-and-dime the citizenry to the local government’s benefit. This is the injustice on which the Justice Department has stumbled, which helps to explain the city’s racial tensions — and which merits urgent correction.

In 2010, the city’s finance director encouraged Ferguson police chief Thomas Jackson to “ramp up” ticket-writing to help mitigate an anticipated sales-tax shortfall. Not only did citations increase, but so did the issuance of “companion charges” — for example, charges for speeding and failure to maintain a single lane, to accompany DWI charges. One stop can yield six or eight citations, and officers have been known to compete to set single-stop records. Indeed, within Ferguson Police Department, because opportunities for promotion have been tied to “productivity” — that is, enthusiasm for ticket-writing — officers have perverse incentives to issue citations, and in concert with police and prosecutors, municipal courts regularly enforce the payment of fines in a way that compounds what a single defendant owes. The report recounts the case of a woman for whom a single 2007 parking infraction — two citations; penalty: $151 plus fees — has led to multiple arrests, jail time, and more than $1,000 in additional fines, half of which she has yet to pay.

The Justice Department’s report squares with an extensive essay by Radley Balko, published in September in the Washington Post:

    Some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts. A majority of these fines are for traffic offenses, but they can also include fines for fare-hopping on MetroLink (St. Louis’s light rail system), loud music and other noise ordinance violations, zoning violations for uncut grass or unkempt property, violations of occupancy permit restrictions, trespassing, wearing “saggy pants,” business license violations and vague infractions such as “disturbing the peace” or “affray” that give police officers a great deal of discretion to look for other violations.

He notes how, in Bel-Ridge, a number of people had been fined “for not subscribing to the town’s only approved garbage collection service.”

The complex question of the relationship between wealth and race comes into play here, but it might reasonably be said that this practice — of police and prosecutors and courts together — disproportionately affects black communities not because they are black, but because they are poor. They do not have the means to escape the justice apparatus, unlike the comparatively wealthy, who can pay a fine and be done with the matter — or hire an attorney, and inconvenience courts that prefer the ease of collecting fees to the challenge of arbitrating cases. To this effect, Balko quotes Thomas Harvey, an attorney for ArchCity Defenders, a St. Louis–based legal-aid group: “These are people who make the same mistakes you or I do — speeding, not wearing a seatbelt, forgetting to get your car inspected on time. The difference is that they don’t have the money to pay the fines. . . . When you can’t pay the fines, you get fined for that, too. And when you can’t get to court, you get an arrest warrant.”

This is what happens in Ferguson. The white population is comparatively wealthy, and it lives in neighborhoods that have very low crime rates. The police do not expend time or resources extensively policing those areas. Much of Ferguson’s black population, though, lives in a fairly compact region, parts of which have high crime rates, and so are intensively policed. The tendency of police to be on the lookout for crime combines with the pressures to prove productivity and the knowledge that poorer residents are the most squeezable turnips. In such a situation, who can be surprised that racial tensions have been increasing for years?

Of course, racial activists are quick to convert correlation into causation: Black residents bear the brunt of police attention because they are black. That is not necessarily true. And it misses the larger, and more virulent, problem. Far more alarming in Ferguson than whether vestigial racism animates a policeman here and there is the perversion of the law, and of the positions of those sworn to protect it, to buck up the treasury on the backs of the most vulnerable, whoever they may be.