The DOJ Is Wrong: Cops and Criminals Are Not Morally Equivalent

COMMENTARY Marriage and Family

The DOJ Is Wrong: Cops and Criminals Are Not Morally Equivalent

Oct 13, 2015 8 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Recently the acting head of the U.S. Justice Department’s Civil Rights Division, Principal Deputy Attorney General Vanita Gupta, gave a very long speech for the “Community Policing Summit” hosted by the U.S. Attorney’s office in New Jersey. The speech was a longer and more detailed version of remarks delivered repeatedly by Obama administration officials these days, so it is worth reading with some care.

Given the most charitable interpretation, the speech presumes a moral equivalence between the police and those arrested by them. On a less charitable reading, it displays hostility to law enforcement and makes a wrongheaded assumption that Americans and American culture are racist and discriminatory. More broadly, it accepts the progressive line that institutional racism is to blame for the ills in America’s inner cities and ignores entirely the possibility of a culture that encourages individuals to act irresponsibly.

 But, if personnel are policy, then perhaps we should not be surprised. Gupta is a former director of the ACLU’s Center for Justice, which focuses on stopping not only the death penalty, but all of the supposed systemic problems in the American criminal-justice system. (In fact, ours is one of the fairest systems in the world, particularly in its due-process protections for defendants. But we digress.) As the acting head of the Civil Rights Division, Gupta no doubt felt that she was being evenhanded by saying some nice things about the police in a speech that then proceeds to repeat baseless charges that are being made against them.

Gupta spends far more time attacking the police than defending them, and even her defense sometimes damns with faint praise. It is hard to read the speech without concluding that the police are failing either because they are well-meaning but incompetent, or because they are not well-meaning at all. In either event, she certainly leaves the impression that critics of the criminal-justice system are basically correct in asserting that the police have been historically discriminatory and that the whole system remains rigged against people of color. Because, after all, at least according to Gupta, the “science” shows that “we all hold biases we aren’t aware of” and we have to identify and correct the “explicit and implicit bias” of police officers.

The speech begins by listing a half-dozen individuals killed by the police and noting what’s called “the sobering public reactions” in Ferguson, New York City, Baltimore, and elsewhere. She recounts the charges made against the police, and what the police say in their own defense, and then concludes, “There is truth in both of these perspectives.”

 But is there really? That is certainly not what her own Division said about the shooting of Michael Brown in Ferguson. Gupta’s summation is deaf, dumb, and blind moral equivalence with a vengeance. It was clear that the witnesses who originally stated that Brown had surrendered with his hands up in response to an unprovoked attack by Officer Darren Wilson had fabricated their testimony. In fact, Wilson was attacked by Brown after robbing a convenience store, and the shooting was entirely justified. So there was no “truth” in what was driving the Ferguson protesters; their perspective was completely wrong, based on false information that generated a mob mentality and mob violence.

But Gupta says nothing about that or how former attorney general Eric Holder and other supposed leaders of the black community such as Al Sharpton inflamed public opinion in Ferguson, assuming from the very start, without any evidence, that the police officer was at fault.

Then Gupta justifies the mistrust of the police as a result of America’s racist past and “criminal-justice policies over the last few decades, and the concentrated impact they have had on poor and minority communities.” This has resulted “in mass incarceration, particularly of people of color accused of low-level crimes.” Yet she refuses to acknowledge the fact that the reason so many “people of color” are in jail is not because of discrimination or an unfair criminal-justice system; it is because, unfortunately, black Americans commit crimes, particularly violent crimes, at far greater rates than do whites, Asians, and Hispanics.

This is a tragic situation that must be attributed in large measure to the widespread absence of two-parent black families and black male role models, not racism or an inherently discriminatory criminal-justice system. And while she may think that drug dealing is a “low-level” crime that does not deserve incarceration, we doubt that law-abiding citizens of inner-city neighborhoods would agree. They are the ones who have had to endure — and watch their children endure — the violence, criminality, destruction of property, and degradation of their communities caused by unchecked drug dealing.

Next she launches into a long discussion of how the Civil Rights Division is “rebuilding police-community trust” by “holding individual officers accountable for criminal misconduct.” What’s more, she boasts that the administration has “opened 22 investigations of law-enforcement agencies across the country” and prosecuted 350 law-enforcement officers. She then proceeds to detail the results of these investigations.

One example is the investigation into the practices of the Ferguson Police Department – an investigation that, according to Peter Kirsanow, a member of the U.S. Commission on Civil Rights, was as a whole “so replete with conclusions unsupported by fact, so lacking in basic methodological rigor” that it “is an embarrassment.” She doesn’t mention her Division’s attempted prosecution of five New Orleans police officers, in which a federal judge ordered new trials because of the “grotesque” misconduct of federal prosecutors, including that of a Civil Rights Division lawyer (who was not terminated and still works in the division). To quote former attorney general Michael B. Mukasey’s important Hillsdale College speech from last summer:

 State and local jurisdictions do not have the resources or the political will to fight the federal government. As a result, more than 20 cities are now operating under consent decrees secured by the Justice Department, with court-appointed monitors imposing restrictive standards on police officers who now think twice before they stop suspects or make arrests. The results are predictable. Shootings are on the rise in New York, as are quality-of-life crimes that create a sense of public disorder and social deterioration. Seattle is also a good example: a federal lawsuit and a court-appointed monitor followed on the heels of a publicized incident, and now homicides are up 25 percent, car theft is up 44 percent, and aggravated assault is up 14 percent.

In an attempt to be evenhanded, Gupta talks about the importance of “officer safety and wellness.” She acknowledges and condemns the recent assassinations of police officers. And she says the police are asked to do too much, often “lack adequate policy guidance, supervision and even equipment,” and are sometimes “unfairly blamed for decisions made far above their rank, or even by local officials outside of the policy department.”

Gupta says the feds want to “make sure officers have the tools and specialized training to do their jobs consistent with community values,” to deal well “with the mentally ill and others in crisis, as well as to ensure respectful interactions with LGBTI [sic] persons, immigrants with language barriers and other vulnerable populations.” She concludes, “Critically, we also owe it to provide [the police] with the professional support to cope with the stress and trauma they encounter on the job.”

That is certainly not something that the Civil Rights Division can provide. Both of the authors of this piece are veterans of the division, and we can attest that the militantly liberal ideologies and backgrounds of the attorneys who now work there — like Vanita Gupta — are well known in the law-enforcement community. None of the lawyers who work with law-enforcement agencies and police officers and conduct the investigations into their supposed misconduct have any experience in law enforcement — including Vanita Gupta.

All, however, are “progressive” lawyers with little patience for, and more often an overt hostility to, law enforcement. As was pointed out in an exposé several years ago, almost all of the division’s lawyers come from left-wing advocacy groups such as the ACLU:

While there were numerous lawyers hired who worked as public defenders or for advocacy organizations for criminals and prisoners, not a single lawyer was hired with experience as a prosecutor or in law enforcement in a Section which has as one its main jobs investigating the practices of local police. Do local jurisdictions really think they will get a fair, nonpartisan, objective hearing from the lawyers in this Section?

Towards the end of the speech, Gupta ties up a few loose ends. Here’s one:

We cannot have a conversation about policing in isolation of broader systemic inequality. Many of the problems in our criminal justice system reflect structural barriers to opportunity. The elevated conversation gives us an opportunity to connect these dots and address inequalities in housing, education, access to transportation, good jobs, and more. These things are undeniably related.

This is not an “elevated” conversation. The myth that there is “systemic inequality” and “structural barriers to opportunity” is part of the false, fashionably progressive claim that America is an inherently racist nation, permanently scarred by past racism. It’s not that conservatives are in denial about past racism; it’s that liberals are in denial about the last 50 years of progress. The racism we still saw in the 1950s and early 1960s has not only become illegal, it has become culturally unacceptable.

American society is not perfect — no society ever will be — but there are no racist “structural barriers” that prevent any Americans, no matter their color or ethnicity, from getting an education and making the most of their opportunities — if they are willing to work hard and not see themselves as “victims” who can’t get ahead. Of course, using and dealing drugs or committing violent crimes are huge barriers to success. For a high-ranking federal official to give a speech that repeatedly excuses law-breaking and discounts personal responsibility and opportunity is, in itself, irresponsible.

Here’s the last of Gupta’s loose ends:

If we would take the time to listen — really listen — and understand why most protesters take to the streets, why police officers risk their lives every day, we would find that, while perspectives may differ, people’s aspirations — and their values — tend to be very similar. We all want safer streets. We all want stronger communities. We all believe in justice.

We find it hard to imagine that, for example, the Black Lives Matter protesters in St. Louis — chanting “pigs in a blanket, fry ’em like bacon” right after two New York police officers were assassinated — have the same “aspirations” and “values” as law-enforcement officers who risk their lives every day. Or that the protesters in Ferguson and Baltimore who looted and burned local shops and drugstores, shot civilians who resisted them, and threw beer bottles, rocks, and other objects at law-enforcement officers trying to maintain the peace, have the same desire for safer streets, stronger communities, and justice as the rest of America.

-Roger Clegg is president and general counsel of the Center for Equal Opportunity, and Hans von Spakovsky is a senior legal fellow at the Heritage Foundation and the coauthor with John Fund of Obama’s Enforcer: Eric Holder’s Justice Department (HarperCollins/Broadside 2014). Both worked in the Justice Department’s Civil Rights Division in happier times.

This piece originally appeared in National Review. See the original and read more content at


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