Passion. Experience. Diligence.

Real, Specific Demands to Confront Systemic Racism in Indiana

On Behalf of | Jul 8, 2020 | Black Lives Matter, Firm News, Indiana law, Kevin Betz

Author: Kevin W. Betz, Senior and Emeritus Counsel

Contributors: Jamie A. Maddox, Partner, Courtney E. Endwright, Partner, Abigail L. DeCoursey, Paralegal and Office Manager

Now that the nightly downtown and worldwide marches, the breaking of storefront windows, the burning of businesses, even more video of an excessive beating with batons right here in Indianapolis with no charges brought and another senseless murder by police in Atlanta caught on video, and the honking of horns and the clanging of cowbells have awakened us all (really!), the Black Lives Matter movement and Hoosier lawyers as well as all of us who want to help identify and solve systemic racism in Indiana, must get specific. If silence is violence, then speaking without specifics will fail to fix it.

To bring the justice that the protesters so desire, it is time to understand specifically some of the deeply embedded systemic racism in Indiana and to develop a list of real and specific demands to address it.

If not, these protests and protesters will lose the precious position of power that these protests have gained from such a sustained and worthy effort at democracy. The protesters have in most ways gained a legitimate voice, and now need to speak truth to power in specific terms. The risk of not solving this systemic racism is too great: the next round of riots could be far more violent and far more racially divisive.

The dialogue has reached only the level of worthy and legitimate slogans; but to attain actual accomplishments, real and specific demands must be made and ever-vigilance beyond the seventeen or so days of rage seen in these mostly peaceful protests.

The responses from those in positions of judicial, political, and economic power have pointed in the right direction, all agreeing that there is “systemic racism” in Indiana that needs to be remedied. The responses have largely offered little understanding of what “systemic racism” means or where it exists and have instead provided more slogans. They declare that “systemic racism exists”; and declare they are opposed to obstacles to opportunity or obstacles for Blacks. Good examples of these statements have come from the CEOs of Lilly and Cummins, Mr. David Ricks, and Mr. Tom Linebarger, as well as Mayor Hogsett and Chief Justice Rush of the Indiana Supreme Court.

There is, however, no specificity to the dialogue at this point from either side of express examples of “systemic racism” and how to solve it.

Unless specifics are demanded, the leaders will negotiate with slogans and pledges of money, and the power of the protests will be lost in well-intentioned marches, with little to nothing of consequence accomplished — except an awakening from disruption, a debate about “systemic racism” and ultimately no real change.

As a civil rights lawyer in Indianapolis for 30+ years, here are a few expressly identified examples of systemic racism and my suggested specific and real remedies that should be demanded and attained before the racial divide grows even wider and deeper:

  • Real transparency with police body cameras and specific policies governing the use of them. Body cameras for each and every law enforcement officer in Indianapolis and Indiana are a start. These body cams were only promised once the protests began, showing the prior indifference to such protections against police wrongful conduct. I think many of us were astounded to learn that Marion County was without this piece of equipment, especially when federal grant money was available to purchase them. As it also turns out, Indianapolis was the largest city in the nation not to have body cams. This shows indifference to the wrongful misconduct of police.

The deeper issues underlying the use of body cameras in many police departments are the policies behind their use. Even if there are body cameras, when should the cameras be recording? And may the officer view the video prior to writing a report? Best practices say the body camera should be “on” all the time and “no” to allowing officers view the body cam video before writing a report. For example, the body camera positioning may have missed part of the shooting or part of the incident, but the officer should not be allowed to know this prior to writing the officer’s report. These are some of the crucial specific policies that underlie proper use of body cameras and must be demanded.

Only about 50 percent of police departments across the country use body cams. They are just a start though, and no panacea. According to initial research, the effectiveness of the cameras depends on the policies regarding use of the cameras, and whether the videos are released to the public. The body camera alone is not enough; the policies for use of body cameras are the most important part to changing or restraining police behavior. Thus, once Indianapolis finally gets the body cameras, the public pressure for the correct policies is just as important as actually getting this equipment in place.

  • Real and independent citizens review board of the police. Instead of a politically appointed “citizens police complaint board,” a new citizens police review board should be convened that is a real and independent citizens board directly accountable to the voters, not beholden to politicians and police unions. The police unions have seemingly co-opted the politically powerful (e.g., no body cams until recent protests demanded them?). This lack of an independently elected citizens review board is another part of the systemic racism. As it is currently, the “citizens police complaint board” only investigates 60 days after the police conduct an investigation; and only the “director” (also a mayoral appointee) conducts an investigation if there is a 3/4 majority vote in favor of an investigation. Indeed, in an ironic twist to the name of the “citizens police complaint board,” the complaint filed by the citizen is not even made public. This is only one of the practices that reveals the citizens police complaint board is a farce that serves little to no real purpose. Under a fully functioning citizens review board, an investigation should ensue regardless of whether a citizen complains or not. A review should be triggered by any use of force by a law enforcement officer.

The Indianapolis citizens police complaint board also fails to compile any specific information regarding the types of complaints made against police officers and how many relate to excessive force. The complaints are organized under vague categories, but none of this information is compiled in a useful way. The City of Indianapolis also fails to compile and annually report police lawsuits and settlements. The citizens police complaint board should publicly share this information on an annual basis, and examine any act of physical contact between a citizen and a law enforcement officer.

Review should not be limited to police actions resulting in death or severe harm, but all actions by law enforcement officers that result in physical contact with a citizen—whether the citizen complains or not—should be reviewed. The review should not be triggered by a formal or informal complaint. A review and investigation should be triggered by any physical contact with a citizen. If you are looking for whether this complaint board lacks credibility, you need look no further than the board itself: “That is ludicrous,” City-County Councilor Leroy Robinson stated during a recent Public Safety and Criminal Justice Committee Meeting. “As a citizen, what kind of credibility or belief do I have in a system to where I file a complaint against an officer from a northwest district, his colleagues do the investigation and report back what they found.” Robinson also stated that the complaint board needs its own independent investigator to add credibility to the board.

Duane Ingram, the current president of the complaint board, publicly echoed these statements during the same committee meeting, stating: “It is absolutely important to add some credibility to this agency.” Ingram also stated: “There’s concerns about the police department, you know,” as “[t]here is a lack of trust the police department can adequately and fairly and impartially investigate their own brothers and sisters in blue.” Mayor Hogsett has declined to support independent investigations of police actions.

According to the records kept by the board since 2013, 3,600 citizens made formal complaints about police conduct. That is an average of about 514 complaints per year, which is almost two per day. But only 10 percent were “sustained,” or, in other words, in only ten percent of these complaints did the Board find “sufficient evidence to prove the allegation(s) made in the complaint by clear and convincing evidence,” according to the Code of the Consolidated City and County. These records leave unknown any specific description of the type of complaint. Alas, even if the complaint is sustained, the current board has no authority to overrule the chief and his decision on discipline. There is also no report on the resolution of the complaints that are “sustained”.

We pay these law enforcement officers; we pay to supply them with their weapons and pay their commanders; therefore, we also have a right and responsibility to independently review police officers’ actions, including an examination of the body cam video anytime a police officer makes any physical contact with a citizen, regardless of whether a complaint is filed. The citizens review board should also have the independent authority to follow-up on any police action with interviews of those involved. Any law enforcement actions that result in death or severe harm to a citizen should not only be reviewed by the board but also be automatically investigated by independent investigators under the authority of the independent review board. It should not be investigated and reviewed by the same police agency that committed the use of force.

For too long, investigations of police actions have been conducted by the same law enforcement agency that committed the actions of excessive force and permissible use of force. Independence is the fundamental of any real investigation, and for the most extreme uses of force, independence should be demanded as a mainstay of the investigation. The formation, standards and policies of review boards should be created by state legislation for the entire state, and not created and negotiated in each county. This kind of real and independent monitoring will assure far greater oversight and a far greater credible understanding by all citizens of the use of force by police.

In Indianapolis, we now only see random samples of horrific video scenes, but the real question is: what is going on daily that we citizens never see? Is there more of the same, or are these incidents isolated? We need to know from a credible review of these incidents, and a real and independent review board is the best way to restore credibility to law enforcement in Indiana. We need some annual statistics on this information, but the citizens review board has chosen not to compile any of that information. The only similar information we have is a 2019 survey on traffic tickets in Indianapolis and its suburbs. That survey found that in Indianapolis, Black drivers received 1.5 tickets for every White driver. In the suburban town of Fishers, the disparity grew to 4.5 tickets, and in the wealthy suburb of Carmel, Black motorists received 18 tickets for every ticket issued to a White motorist.

The current structure of the citizens complaint board is a politically appointed board that is highly tilted toward the police and only acts on complaints in which the victim of excessive force is under great fear of being exposed to retaliation for making the complaint. There needs to be systematic tracking of all contact between the police and a citizen and reporting on an annual basis. A fundamental rule of management is: what gets tracked, gets done. If police contact with citizens is tracked, then we will systematically limit and ideally eliminate the excessive use of force by police against citizens. These public statistics will reveal (or not) any systemic racism involved in the police’s use of excessive force. But the lack of a real and independent citizens review board shows that systemic racism exists in our law enforcement structure today. It must be solved.

  • Real state and local civil rights laws in Indiana. Like body cams, many Hoosiers assume we already have basic state and local civil rights laws. We don’t! We do not have anything closely resembling real civil rights laws in this state that 46 other states already have. In Indiana, we have essentially a state policy statement on the books, but it does not allow for emotional distress damages (zero!), no attorney fees, no publicity is even permitted (it really says this!), and no jury or bench trials are permitted — unless the company accused of discrimination agrees to it.

This lack of any real state or local civil rights laws shows the blatant systemic racism that exists in our state and city. The permission necessary for the business accused of discrimination to allow access to our state courts has been in place for more than 50+ years, and it has been 100 percent perfectly effective. In those 50+ years, there’s never been a civil rights jury or bench trial in the state of Indiana. This sham civil rights law smacks of a still existing Jim Crow law and represents even deeper systemic racism in Indiana. These so-called state civil rights in Indiana are a strong symbol of what this state thinks of civil rights protections against discrimination based on race. It is another shameful and dramatic example of systemic racism, if not outright, racism that there has never been a single civil rights trial in our own state courts. Even if there had been a trial, the non-existent remedies under the statute do not deter discrimination if proven.

The Ku Klux Klansmen and their legacy from the 1920s in Indiana surely could not be more proud of Indiana’s sham state civil rights law. It is unfathomable that the MLK legacy of civil rights laws in the 1960s making it illegal to harass or discriminate based on someone’s race never made it to Indiana or Indianapolis, but there it is: deeply embedded systemic racism in Indiana. We must therefore understand this “systemic racism” to solve it.

Blacks only have available antiquated federal civil rights with out-dated monetary caps for emotional distress damages that were last updated in 1991 (from their original passage in 1964), depending on the number of employees an employer has. For employers who have 14 to 101 employees, emotional distress damages are capped at $50,000, which is worth roughly only $26,000 in 2020 dollars. For larger employers, the cap set in 1991 was $300,000, which is worth roughly only $150,000 in 2020 dollars. This antiquated federal system with its so deteriorated value of monetary damages is another form of systemic racism. We are telling Blacks that acts of discrimination and the resulting remedy for proving such discrimination is now worth half as much as it was worth in 1991.

The damages amounts should obviously be adjusted under real state civil rights laws to provide for realistic damages in 2020. Real state civil rights laws should also allow for jurors from one’s own county and a greater chance for a jury trial. In a federal court case, a far more likely outcome is a “paper trial” in favor of an employer by a federal judge. A federal court is the only court in which civil rights are currently realistically available to any Indiana citizen. In federal court, the jurors are drawn from a far wider geographic area than a single county and are mostly rural Whites; whereas state civil rights laws would allow for jurors only from the county in which the discriminated against employee resides. In Marion County with almost 30 percent Blacks and 10 percent Latinos, juror diversity is significantly increased versus the federal court system that draws from a large swath of rural counties of mostly Whites. In other words, under the current lack of state civil rights laws, the discrimination may have occurred in Marion County but the jurors in federal court are drawn from more than 30+ surrounding counties, not just Marion County.

These may seem to be granular points but they are indeed very significant and reveal systemic racism in Indiana. Passing real state civil rights laws with up-to-date monetary damages amounts, recovery of attorney fees so attorneys are incentivized to pursue such cases, and the right to a jury trial of one’s peers (not just rural Whites) is vitally important to resolve systemic racism in Indiana. The simple lack of any real state or local civil rights laws is likely the most insidious systemic racism in our state. Indiana is in the same category as Mississippi, Arkansas and Alabama, all states that lack state protections against race discrimination.

  • Real elections of Marion County trial court judges by voters. Of the 92 counties in Indiana, Marion County has a totally unique selection process for its judges. In fact, best anyone can tell, Marion County’s process is a completely unique process in the entire United States. The Marion County courts handle 20 percent of Indiana cases, and many are the most important cases because lawsuits by or against state agencies go to Marion County courts, unless there is a federal law involved.

For 40 years prior to 2018, when the newest selection scheme was implemented, voters cast “meaningless” votes—according to a federal court ruling in 2015 that declared the prior system unconstitutional. Now, voters have no direct involvement. Thus, after the 2015 federal court ruling declaring that votes for judges were “meaningless” in Marion County, the response by our political leaders in 2018 was to just take away citizen voting for the selection of Marion County judges. That’s a solution, but not a real or fair solution based in principles of democracy. It is a solution that keeps the power of picking judges in the hands of political parties, not the voters of Marion County.

The Marion County judges thus remain beholden to their county political chairperson and political party, not the voters of Marion County, just the same as the process that was declared unconstitutional in 2015. Of the 70 current judges, magistrates and commissioners in Marion County, 70 percent are White, and only 13 are Black or about 18 percent. If you are a Black resident of Marion County, you face justice knowing that there are about 30 percent Blacks in the population of Marion County, but only 18 percent of the trial court judges and magistrates are Black. And these Blacks judges are beholden to political parties for their job — not to Marion County voters. Marion County did not have its first Black judge until 1958, which was 40 years after the first female judge in 1919. But in the 62 years since the first Black judge, besides the current 13, there have been less than 25 Black judges in those 62 years.

And the appellate courts in Indiana are even worse. Only one Black judge currently sits on the 15-member Indiana Court of Appeals and precisely zero Blacks currently sit on the five-member Indiana Supreme Court. Only two Blacks have ever served on the Indiana Supreme Court in its 204-year history. The current five all-White Indiana Supreme Court justices were initially selected by a partisan commission and then from a set of three nominees, the justice was chosen by the Indiana Governor. Members of the selection commission for the Indiana Supreme Court are either elected by lawyers only or appointed by the Governor. All five Indiana Supreme Court justices are Republicans. While Democrat mayor Joe Hogsett earned 70 percent of the vote in Marion County in 2019, state law mandates that no more than 52 percent of the judges in Marion County may be from one political party. No matter the merit of the judge, the Marion County selection committee must choose no more than 52 percent from the Democrat party and no more than 48 percent from the Republican party or vice versa. Interestingly, no such mandates exist for a partisan split of appointments for Supreme Court justices or Court of Appeals judges who are also selected by a committee with the final choice by the Governor. Only Marion County has the 52-48 partisan rule in place.

A bit of history tells us how we got to this yet another form of systemic racism in Indianapolis. For over 50+ years, the trial court judges in Marion County were directly or indirectly selected by the most political person in Marion County — the county chairperson of the Democrat and Republican parties. Selecting trial court judges by political party presented some blaring issues. For starters, Marion County judges chosen by a party leader were not accountable to Marion County voters for the use of their judicial power. The Marion County trial court judges were beholden for their jobs to their county political chairperson and their political party. Their county political chairperson who chose to hire them, could also choose to fire them —not the electorate of Marion County. No county chairperson of the Democrat party or Republican party in Marion County has ever been a Black person, and Blacks have been mostly overlooked for judge positions in Marion County over the past 50 years. In those 50 years, there have been less than about 25 Blacks chosen to be a Marion County judge, which is only about five percent of the judges over those 50 years, according to the memory of judges and court observers. No records have been kept on this point.

This is obviously not the way to run a real and fair judicial selection system based on merit or principles of democracy, much less one free of systemic racism. Nonetheless, as a matter of state law, these Marion County judgeships were divvied-up like the ill-gotten gains from a collusion scheme between Marion County Democrats and Republicans: 50 percent Democrat and 50 percent Republican. There could have been 100 percent Democrats in Marion County, but state law still required that at least 48 percent of the judges in Marion County be Republicans. Not only was this putting the most political person and political partisans in the county in charge of hiring and firing the trial court judges in Marion County, but to divvy up the judgeships based solely on political affiliation was a blatant contradiction of how a fair and meritorious selection process of judges should have been conducted. Even if Oliver Wendell Holmes himself had tried to become a judge in Marion County, he would have needed to pass the muster of the county political chairpersons and show his fidelity to the political partisans of Democrats or Republicans before being selected. For 40 years it was known as the “partisan balance statute” of a 50-50 split. That legislation for 40 years required sham general elections of judges because the voters were — again by state law — restricted to a meaningless vote in the general election for the 16 Republicans and the 16 Democrats on the ballot. Voters were only allowed to vote for 16 of the 32 judges…as if it even mattered.

All judges on the general election ballot were winners. There were no losers, except democracy. It was all just a big fake-out to voters. As the federal appeals court stated: “the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made. It is of no consequence whether voters approve or disapprove of the candidates.” The judges who were selected were happy; the county political chairpersons with hire and fire power over the judges were happy; but the voters were entirely left out of the  joke election where votes by citizens meant nothing to anyone, except as a fraud on democracy and a fraud on the voters of Marion County. In the primary, where the 16 judges of the party were initially selected, the county chairperson would announce and run a “slate” of 16 judges in the primary. This was the equivalent of telling the party faithful in the primary election to only vote for the county chairperson’s 16 hand-picked judicial candidates or “slate” in the primary election. The county chairpersons were highly effective in making sure that the “slate” would always win the primary election. In only a few exceptions were the county chairperson’s “slate” of 16 ever contested. For those 40+ years, the chairperson’s “slate” of 16 won all 16 of the primary ballot spots 95 percent of the time. Thus, the “vote” for judges in the primary election and in the general election was — to repeat — a sham on voters in Marion County.

As if this were not enough, the two political parties would engage in fund-raising for these “judicial elections.” The Marion County political parties would solicit money from lawyers for these fake campaigns. Not only would the political parties ask lawyers for money for their judicial candidates, but the judges individually would ask attorneys for money that would then be contributed to their “campaigns.” In actuality, this was money to pay for the judges’ “slating fee” with the county political party. Thus, the Marion County party not only held the power to hire and fire Marion County’s trial court judges, but the political parties also made a lot of money in the process too (sometimes as high as $50,000 per judge to “qualify” for the county party’s slate).

This history is important, because it informs the current iteration of Marion County’s judicial selection process. In 2015 the federal Seventh Circuit Court of Appeals resoundingly declared Marion County’s judicial selection system an unconstitutional sham, and the federal court also stated that the state law for selection of Marion County judges “removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. …[T]he general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.” This system also granted enormous power to the county chairpersons and county political parties, and they were not likely to just surrender that much power based on a ruling that their system was unconstitutional.

Instead of changing this meaningless voting scheme, the political powerbrokers responded by taking away any voting for judges in the primary or general elections. The Indiana legislature in 2018 created what it calls “the Marion County judicial selection committee”. So, Marion County voters went from a sham and meaningless vote, to no vote at all. Only a selection committee comprised of 14 members, four of whom are appointed by the county political chairpersons (two each) with no qualifications for selecting judges (not even a requirement to be a lawyer), and four other committee members are appointed by statehouse political leaders in the legislature — again with no requirements of any qualifications for selecting judges or even being a lawyer. This makes for a majority of eight political appointments out of 14 to select a judge in Marion County and send three nominees to the Governor for a final selection. This new system — which is really just a re-shuffling of the previously stacked deck — also blatantly short-changes Blacks again. There are currently five Blacks and no Latinos on this new Marion County selection committee. But there are only 13 Blacks out of 70 judges who are currently Marion County judges. And in Marion County, Mayor Joe Hogsett, who is a Democrat, earned 71.6 percent of the vote last year. So potentially the Marion County electorate could prefer that 70 percent of its judges be Democrats. No such democracy exists in Marion County though — at least not for the selection of judges.

After holding the power of directly picking judges for 40 years under the guise of a sham vote, the Marion County power-brokers are stubborn: there is still a provision in the new legislation passed in 2018 that requires “in no event may more than fifty-two percent (52%) of the judges serving on the Marion Superior Court be members of the same political party.” So not only do the Democrat and Republican party leaders have the same power over the judges to hire them, they still divvy up the judgeships roughly 50-50. If you are keeping score at home, the political party bosses won another round in the control and selection of Marion County judges.

The political party leaders also still have the unique power to fire the Marion County judges. The selected Marion County judges must stand for a retention vote. But unlike any other selection process for appellate judges or trial court judges in Indiana, where the judge’s name simply appears on the general election ballot for a ‘’yes’’ or “no” retention vote, the Marion County retention process requires a direct statement from the Marion County judicial selection committee that the judge is “qualified” or “not qualified.” In this Marion County-only system, a mandated closed door meeting occurs between only the judge up for retention and the judicial selection committee, and at this singular closed door meeting, the judicial selection committee determines, in its own discretion with no standards for what is “qualified” or what is “not qualified”, whether the judge will stand for retention as qualified for not qualified. No reasons or explanation of any kind are required or allowed for the Marion County judicial selection committee’s determination of the judge being “qualified” or “not qualified”. But if this unexplained  determination is made by nine votes of the Marion County judicial selection committee that the judge is “not qualified,” then the media and judicial web sites shall notify the public far and wide that this judge is “not qualified” before a retention vote in the general election on the judges. Likewise, for those judges deemed “qualified” by the Marion County judicial selection committee (in its sole discretion), it shall issue that determination to the media as well. But no explanation is permitted. Not even the vote of the judicial selection committee is publicly released. Thus, the political powerbrokers can still effectively fire the Marion County judge.

Retention votes are held in the general election for Indiana Court of Appeals judges and Indiana Supreme Court justices as well as trial court judges in other counties. But there is no requirement of meeting with a judicial selection committee to determine in its sole, unexplained discretion if the judge is “qualified” or “not qualified.” These appellate judges and other county judges simply have their names placed on the ballot for retention, and 100 percent have been retained over the past 50 years. In four Indiana counties there is a “merit selection process” with elected lawyers and elected citizens who select qualified judges and then provide five names from which the Governor selects the judge. The judges in those four counties stand for retention by simply placing their name on the ballot, which is the same process for appellate judges.

The system of judicial selection of Marion County judges that results in very few Black judges, even though the demographics of Marion County are far different than the racial make-up of the Marion County judges, is another facet of systemic racism in Marion County. The selection of Marion County judges is still totally controlled by political party chairpersons and political party partisans. This “new” process ignores all principles of merit, fairness and democracy. It has also historically overlooked Black judges. It must be changed.

  • Real specialized trial court focused specifically on law enforcement excessive force cases. Just as a “Commercial Court” was created recently by the Indiana Supreme Court to streamline cases involving businesses, a special court should be created to streamline “excessive force” cases by police. An excessive force court is far-more needed than a commercial court to help businesses. There is an abundance of evidence that an “excessive force” trial court in Indiana is needed to swiftly process these cases and to deal with the unique nature of these cases. The fact that the Indiana Supreme Court created a commercial court, providing additional resources and money for businesses to have their own streamlined court system, shows that an “excessive force” court could and should be created. The fact of the highly political nature of the hiring and firing of judges in Marion County strongly and further supports the creation of an “excessive force” court. This court would bring far more sophistication and credibility to these cases and dispositions could be far more quickly reached, lessening community tension and assuring victims of the most credible trial court to handle such cases. As Chief Justice Rush stated: “Indiana’s court system needs to listen to the voices that cry out in our streets and towns. We must acknowledge and confront the reality that our fellow community members say is their experience. And it is imperative we take action to change that experience — not ignore, justify or disparage it.”

A specialized excessive force court as well as the other action points above must be taken to change long-standing systemic racism in Indiana.