The fiction that there’s a war on the police has brought us to a truly bizarre place. Cops claim “blue racism,” and language meant to protect the vulnerable is lifted wholesale to become the basis for new laws. New York City’s police union posted a video recently condemning bias against cops—a type of intolerance it said could be “even more racist” than hating someone because of the color of their skin. And next week, a Texas law could try police in special courts designed to help civilians avoid jail.
The idea that cops across the country have been unfairly targeted by an avalanche of anti-police bias has animated a movement to reinterpret existing laws intended to protect other groups. Since 2016, at least 14 pieces of legislation have been introduced across the country that would make assaulting an officer a hate crime. These laws are for the most part symbolic: Redundant and difficult to prosecute, they’re messages, from the state straight to you, that it cares when you’re murdered.
Last year’s shooting of an officer at a Black Lives Matter protest in Dallas gave “Blue Lives Matter” bills an extra boost through the legislature, which is why on September 1 a troubling piece of legislation will go into effect in Texas—one intended to provide non-violent criminal offenders with sensitive, individualized sentencing. And keep them out of prison.
The law, facilitated by Texas’ largest police union, outlines the process through which individual counties could create “diversion” or treatment courts for law enforcement and first responders, including prison guards and county jailers. Diversion courts allow people who meet certain criteria to plead guilty and choose treatment over jail time, in this case for PTSD, drug and alcohol addiction, or other mental health concerns an officer might pick up on the job.
“These [courts] are for substance abuse, for people experiencing trauma,” a spokesman for the police union told the Texas Tribune last month. “I think this is our sense of getting to some sort of justice.”
But the architects of this basic court model—a handful of prosecutors and judges worn down by the Drug War’s endless stream of non-violent offenders—were less interested in justice than pragmatism. The country’s first drug courts were created in the Miami area in 1989, towards the end of a decade in which it was becoming clear you couldn’t punish drug addiction into submission, no matter how long the prison sentence. That year, George W. Bush had requested $1.5 billion for more courts, more prisons, more prosecutors. But in Florida the faultiness of that model was obvious to the lawyers and judges who saw the same people 30 times a year.
There are now more than 3,000 treatment courts in this country. They’re for drug addicts with kids, for people with severe mental health issues, and for native people dealing specifically with tribal justice systems. In 2008, noting the number of homeless and drug-addicted veterans appearing in its court, Buffalo, New York created the first treatment court specifically to deal with former service members and to coordinate services with the Department of Veteran Affairs. The veteran court model has been replicated in 300 counties across the country—though, notably, the governor of Texas yanked funding for some of them as part of the state package he cut to punish sanctuary cities earlier this year.
“Veterans courts make so much sense,” says Christ Duetch, a spokesperson for the National Association of Drug Courts, which helps counties set up diversion courts. Veterans weren’t getting access to the care they needed; their benefits and resources are different than the general population, he says, given their relationship to the VA. But he, like many, are curious about the numbers and the need for the new court in Texas. Are there really a lot of police officers doing avoidable time for smaller crimes?
Treatment courts aren’t exactly dismantling the school-to-prison pipeline: The criteria for getting to drug court, critics say, is too narrow. But many across the political spectrum have warmed to the idea that shuttling people into a justice system that will leave them homeless, jobless, and likely to return isn’t the best plan.
The Texas police union invokes veterans courts as a model for their new law, but unlike veterans the police aren’t plagued by high reported crime rates. One 2012 study found that 23% of veterans with PTSD were arrested within a year of returning from service. That number was closer to 9% if you included veterans without mental health issues. One of the only overarching studies to count the number of police officers charged with crimes between 2005 and 2011 counted about 1,000 a year for almost 800,000 officers. In Texas, even the courts seem unclear why they need the new law.
And the police have proven in most cases to be impossible to indict for murder, for committing sexual assault, for domestic abuse. It’s hard to imagine less violent crimes being any different: Judges are generally sympathetic to the cops. They receive better lawyers, who are often paid by their unions, and find themselves in front of more sympathetic juries.
A recent investigation by the Texas Observer into the Houston department, the largest in the state, found a culture of negligence when it comes to holding officers accountable. As one former officer told them, “I’d pretty much have to commit a felony to get fired.”
The police union has said the courts won’t be used to prosecute police shootings, and to most observers the diversion court system for cops looks like just a benign nod to the police’s sense of persecution—a solution to a problem that just isn’t there.
Marc Mauer, executive director of the non-profit Sentencing Project, which advocates for alternatives to incarceration, questions why cops can’t just go to civilian drug and treatment courts—and why individual, treatment-focused courts aren’t available to everyone. “Yeah, it’s a stressful job,” he says, “but so is being a ditch-digger or an air traffic controller.”
Given how few counties appear to want a court for cops, and the unprecedented nature of the law, it’s hard to know what will happen over the next months. And sure it must be tempting, as a person with a gun and the strength of the state behind you, to use the language of disenfranchised groups. But it’s still scary as hell when police departments willfully misunderstand their position in the world and write laws intended to protect people who need it.