Eleven Post-Floyd Reforms Toward Justice in America

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Lady liberty calling for post-floyd reforms

On May 25, 2020, George Floyd, a 46-year-old Black man, died in Minneapolis, Minnesota after Derek Chauvin, a white police officer, knelt on his neck for almost ten minutes while he was handcuffed face down in the street. Two other officers restrained Floyd and a fourth officer prevented onlookers from intervening. During the final minutes, Floyd was motionless and had no pulse. Officers made no attempt to revive him, and Chauvin’s knee remained on his neck as emergency medical technicians attempted to treat him.

Floyd had been arrested on suspicion of passing a counterfeit $20 bill at a nearby market. Several witnesses took videos of the incident, which were widely circulated and broadcasted along with security camera footage from nearby businesses. The officers’ body camera captured additional footage. A criminal complaint later filed against Chauvin stated that Floyd repeatedly said he could not breathe while standing outside the police car, he resisted getting in the car, and intentionally fell down. He went to the ground face down and after Chauvin placed his knee on Floyd’s neck, Floyd repeatedly said “I can’t breathe”, “Mama”, and “Please”.

Two autopsies determined the manner of Floyd’s death to be a homicide. All four officers were fired the day after the incident. All four officers were criminally charged.

After Floyd’s death, demonstrations and protests against the use of excessive force by police officers and lack of police accountability were held globally. As the officers make their way through the criminal justice system, America is faced with deciding which ideals will define it as a nation.

Onlookers knew that what was happening was wrong. As the video footage was shared across the globe, viewers knew what happened was wrong. A national conversation is underway to discover concrete reforms that could result in measurable change. Here are several to consider.

National Law Enforcement Officer Database

We entrust law enforcement officers with an astonishing amount of power. Wielding that power requires intelligence, mastery in the practice of policing, and a persistent temperament that makes split decisions from a properly ordered heart. All three are required. Someone who lacks one or more of the ingredients to be a good law enforcement officer may be wildly successful in another profession, but to be a good law enforcement officer, sustainably, requires all three.

Wielding the power entrusted to law enforcement officers requires intelligence, mastery in the practice of policing, and a persistent temperament that makes split decisions from a properly ordered heart. All three are required.

A challenge in hiring and retaining law enforcement officers is assessment. How does a potential employer assess these three characteristics? How does a potential employer know if the officer is seeking employment for career advancement or relocation rather than to sidestep an anticipated abuse-of-power complaint? Even if all officers were forthcoming, not all officers are self-aware. They may not realize that one of these ingredients is missing or has weakened over time.

It is not enough to assess these areas once during an officer’s career. It is possible that someone may begin their law enforcement career with all three ingredients and one of the ingredients may weaken over time or may be weakened through one experience, especially a traumatic one.

Even if they are aware, what can they do if they know they need to change professions? There is no reliable pipeline for law enforcement officers to transition into other professions. Making the transition without such a pipeline often means walking away from a salary, benefits, and retirement. So, faced with a potential abuse-of-force claim, the officer may have no choice but to stay in law enforcement someplace else.

Today, it is possible for a law enforcement officer to be accused of abuse-of-force, resign, or even be fired, and be hired by another department almost immediately. The hiring department may conduct a background check on the officer and never discover the basis for their resignation or termination. This darkness and shadow covering the hiring and retention of law enforcement officers who do not have the ingredients to practice policing is fertile ground for abuse to grow and abusers to add incidents of abuse-of-force to the hidden portion of their resume over a long career.

Transparency and openness are necessary components of policing. Currently, there is no clearinghouse for data about law enforcement officers and abuse-of-force. Reform law enforcement officer employment history sharing by creating a database that is national, compulsory, real-time, and open.

Several attempts have been made to create databases that track law enforcement misconduct. USA Today identified over 85,000 law enforcement officers with misconduct concerns. A large collection of data was created by USA Today and warehouses over 30,000 law enforcement officers banned by 44 states. This database is a good first step. For a database to be a tool for sustained change, however, it must be national, compulsory, real-time, and open.

It is common practice for law enforcement officers facing misconduct claims to resign and move to another department. Even officers terminated for misconduct readily find employment with another department. A database that is limited to state data will not deter this practice because the officer need only move to another state to be re-employed. A national database is necessary to ensure that the data is available for hiring and retention decisions.

The blue wall of silence is dangerous when the loyalty that officers owe their institution shifts from the institution to an individual officer.

One of the conditions that law enforcement misconduct flourishes under is known as the blue wall of silence. It is also known as the blue code or the blue shield. The condition occurs when the loyalty that officers owe the institution shifts from the institution to an individual. Law enforcement officers have duties that arise under laws, ordinances, policy, and oath. Most officers take an oath something like this one:

On my honor, I will never betray my badge, my integrity, my character, or the public trust. I will always have the courage to hold myself and others accountable for our actions. I will always uphold the constitution, my community, and the agency I serve.

Notice that the oath establishes loyalty to the constitution, the community, and the agency — an institutional loyalty. Understandably, as they share life-threatening experiences together, officers develop a personal loyalty to each other that often transcends the loyalty they feel for an institution that is perceived as under-appreciating and underpaying them.

This shift in loyalty is supported culturally. As a people, Americans do not idolize whistleblowers, even when they are telling the truth. There is the American cultural sentiment that “snitches get stitches.” Despite this, compulsory reporting to the national database is necessary for it to have integrity.

This could be accomplished through funding initiatives. For example, departments must certify that they have made the appropriate reports to receive federal funding. Departments who are later determined to have made the certification fraudulently or through gross negligence would be barred for 2.5-3 years (the average tenure for a chief of police) from receiving federal funding. This could also be achieved by creating a private right of action for fraudulent or grossly negligent certification and incentivizing public interest law firms by providing for liquidated damages and removing qualified immunity for improper certification.

Anticipating termination or discipline, a law enforcement officer may simply resign and seek employment in another department. A real-time, early designation in the database that the officer was “under review,” would deter this practice. The officer should be given every facet of due process. However, the use of due process to cover the officer for new employment should be guarded against.

Acknowledging that law enforcement officers have privacy rights, those rights are balanced against the fact that they hold public positions. At a minimum, the data in the national database could be readily accessible to any law enforcement agency and accessible through formal pre-litigation requests.

Limit Qualified Immunity

It is not enough to only know about law enforcement misconduct. The officers involved in the George Floyd arrest had time to cool down, they knew they were being videoed by bystanders, they seemed to simply believe that they would be shielded by qualified immunity.

Transparency in government is only as powerful as the citizen’s right to give the data a meaningful voice. The third law of motion applies to the government as much as any other discipline. For every action, there is an equal and opposite reaction. When police misconduct results in injustice, there is an equal and opposite force (the force of justice) that is set in motion. If a mechanism is put in place to channel that voice, such as jury trials, the action may take place there, the voice may be heard and acted on by a jury. Where there is no mechanism in place, the equal and opposite force will make its own way — protests and violence against property and people.

Qualified immunity is a judicial doctrine that shields government officials from being held personally liable for abuse-of-force, provided that the government official did not violate clearly established law.

Some form of qualified immunity is necessary for law enforcement officers acting in the line and scope of their duties (within the law) and in the heat of the moment. When faced with a heated threat of force capable of serious personal injury or death, law enforcement officers cannot be expected to reflectively contemplate every action. Even if the expectation might be justified, the weight of using force to protect citizens or themselves is a high priority that excuses conduct that would otherwise be legally actionable in society.

However, the further away from the heat of the threat an officer gets, the thinner the shield of qualified immunity. Negligent hiring, training, and retention of officers, for example, is a contemplative decision-making process made in the cool place of administration. Qualified immunity for activities like hiring, training, and retention decisions could be eliminated. Law enforcement actions outside of their line and scope of employment or made in “cool” scenarios should not be protected by qualified immunity. Reform qualified immunity so that it only protects law enforcement officers working in the line and scope of their employment during times when a reasonable person could not make a contemplative decision.

Removing the shield of qualified immunity would open the door for private attorney generals, public interest law firms, and private citizens to take action against negligent and otherwise wrongful actions. Transparency could be protected by statute by making these claims reportable to the national law enforcement database.

Evidence-Based Decisions

One challenge of collecting data on officers accused of misconduct is how the data might be used. For example, there is a difference between the quantity of reports and the quality of reports. An officer may have numerous reports on file making the quantity of reports high. Once the quality of the reports is more closely examined, however, it may be determined that the reports have little or no quality. That officer may do their job well and still encourage reporting due to weak interpersonal skills.

Another concern might be that once an officer has reports in the database they are labeled as a bad person. The consequence is those bad people cannot work in law enforcement, or perhaps, the criminal justice system. The question is not so much whether or not bad people should or ought to work in law enforcement. The question is, how do we decide that someone is a bad person? The answer is that we cannot.

We cannot legally determine that someone is a bad person and therefore not suitable to serve without sliding into the mire of the “rule of man” as opposed to the “rule of law” that is an original, noble principle of United States jurisprudence. Qualifying a person based on the rule of man is arbitrary in that it is subject to change based on the person, party, or regime. The rule of man is not based on established and known rules. Determinations are based more on a personal whim (often based on loyalty) than evidence. Whether or not someone is a good person depends much more on keeping the ruler’s favor than the character of the person. Historically, the “rule of man” has, without exception, resulted in human rights violations and death.

How the information in a national law enforcement database is used could be safeguarded. These safeguards should not lean toward limiting access which pushes against the rule of law. Instead, these safeguards should include due process and liberal administrative actions, as well as private actions for law enforcement officers to correct entries.

The database could further allow law enforcement officers to make rehabilitation entries. If an officer can show evidence that they have done rehabilitation work, it could be considered during hiring and retention decisions.

Eliminate Funding Based on Stops, Arrests, or Ticketing

The George Floyd incident began with an arrest of a suspected counterfeit $20 bill. Law enforcement officers are duty-bound not to look away from criminality. Still, why the zeal to arrest Mr. Floyd? Why were the seemingly large amount of resources deployed to arrest Mr. Floyd? Could some arrests be eliminated altogether by eliminating, where possible, ulterior motives for arrests?

What can be eliminated as a potential answer to these questions is the perception of an ulterior motive on behalf of law enforcement officers.

Ulterior motives result in conflicts of interest sometimes referred to as a competition of interests. A conflict of interest occurs when a person acting in an official capacity has more than one loyalty and serving one loyalty may work as a detriment to others. A loyalty may originate from an oath, blood relations, financial interest, reciprocity, or a myriad of other interests. A conflict of interest does not require illegal, unethical, or otherwise improper actions. It originates as soon as a person acting in an official capacity has more than one loyalty.

Some conflicts of interest are waivable. Some are not. It is the difference between, for example, an attorney representing both spouses in a divorce (waivable) and representing both spouses and being one of the spouses (not waivable).

The most effective way to avoid conflicts of interest is to avoid multiple roles. In this illustration, for example, the attorney/wife could simply retain another attorney for representation. Rather than playing the dual role of attorney and wife, the role would then simply be a wife and the conflict would be avoided.

Likewise, placing law enforcement officers in the dual role of a peace officer and revenue generator forces them into a conflict of interest that cannot be waived. This is obvious where an officer is rewarded for stops, tickets, or arrests. For example, in New Jersey, North Brunswick police officers, when considering whether or not to issue tickets, were financially rewarded to rack up numbers. The more tickets an officer issued, the more money officers would receive in overtime pay. A special area of focus is asset forfeiture which is sometimes referred to as civil justice forfeiture. This is a process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. The assets that are forfeited are used by the seizing agency or sold and the cash is used by the seizing agency. This practice creates a clear conflict of interest as the benefit is direct. Financial interests, however, do not have to be this direct to create a conflict of interest. A perceived interest is enough to create a conflict of interest.

A perceived interest would result from officers believing that stops, ticketing, or arrests generally fund law enforcement. For example, the practice of court fees funding courts is perceived by the normal citizen as motivating law enforcement to ensure a steady flow of citizens through the court system. If court fees in fact fund law enforcement, law enforcement officers are forced into a conflict of interest and the normal citizenry is right to distrust law enforcement.

Interests do not have to be monetary. Promotions, awards, and general accolades are enough to create conflicts of interest. Some agencies have a scoreboard where stops, tickets, and arrests are recorded. Officers with the highest numbers may receive a printed certificate, notation on job performance reviews, or just bragging rights. That is enough to create conflicts of interest.

Reform criminal justice funding by eliminating funding based on stops, arrests, or ticketing.

But it is not enough to eliminate conflicts of interest. Officers’ compensation, accolades, and advancement could be rewarded based on the ethical core values of law enforcement. Fortunately, the International Association of Chiefs of Police has done the work of creating a go-by:

Law Enforcement Code of Ethics

● As a law enforcement officer, my fundamental duty is to serve the community, to safeguard lives and property, to protect the innocent against deception, the weak against oppression or intimidation and the peaceful against violence or disorder. To respect the constitutional rights of all to liberty, equality, and justice.
● I will keep my private life unsullied as an example to all and will behave in a manner that does not bring discredit to me or to my agency. I will maintain courage and calm in the face of danger, scorn or ridicule. I will develop self-restraint and be constantly mindful of the welfare of others. I will be honest in thought and deed both in my personal and official life, I will be exemplary in obeying the law and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duty.
● I will never act officiously or permit personal feelings, prejudices, political beliefs, aspirations, animosities or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities.
● I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service. I will never engage in acts of corruption or bribery, nor will I condone such acts by other police officers. I will cooperate with all legally authorized agencies and their representatives in the pursuit of justice.
● I know that I alone am responsible for my own standard of professional performance and will take every reasonable opportunity to enhance and improve my level of knowledge and competence.
● I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession: law enforcement.

Zealously Demand Justice Everywhere

While watching the videos of George Floyd’s death it is hard to explain the conduct of the law enforcement officers as anything but abuse-of-force and criminal. It would be easy to presume the officers’ guilt and dispense with due process, the steps of justice. Even so, they are guilty of nothing because they are presumed innocent. They are not guilty until every step of due process is exhausted; until relevant and reliable evidence is presented against them, and until a jury determines that the evidence has proven each element of the crimes presented against them beyond a reasonable doubt. Justice requires valuing due process over power, over profit, over personal loyalty, and over self. We demonstrate justice for George Floyd by the justice we demand for the officers accused of his death.

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. ― Martin Luther King Jr., Letter from the Birmingham Jail

My faith teaches that injustice has a voice that cries out and continues to cry out until justice is done. Justice is not done until each person receives their due. Under American jurisprudence, the work of justice is done through due process. The justice system can be reformed by ensuring that each step of due process for each case is accomplished zealously. The barometer for whether or not this is being accomplished is jury trials. Jury trials are a public forum for citizens to be heard. Martin Luther King, Jr. teaches that “riots are the language of the unheard.” It is not surprising that we live in a season of rioting. Look at what has happened to jury trials over the past three decades. Several legislative, judicial, and societal factors have made pleading guilty when innocent more profitable than the wrongfully accused voicing their story to a jury. Less than four percent of all criminal cases go to trial. Re-dedication to a zealous commitment to due process, resulting in more jury trials is a simple and attainable objective.

The end of due process is justice, not efficiency. Courts are places of justice, not commerce. There is a financial cost for a zealous commitment to due process and its detractors argue that due process is too expensive. That point is easily refuted when societal costs are weighed against the cost of due process. Further, there are methods that accomplish due process at a lower cost than going to war in a courtroom.

Restorative justice is an approach to justice in which one of the responses to a crime is to organize a meeting between all the stakeholders — such as the victim, the offender, and the community. The victim has the opportunity to express what has been taken from them and the offender has the opportunity to restore the victim. The community has the opportunity to participate in the process. When justice takes place in the community before it gets into the courtroom it is more effective and more efficient.

Pre-Arrest Diversion programs are a restorative practice as well. For people who intersect the criminal justice system because of underlying health or development challenges, pre-arrest diversion may change the life trajectory for those people, make them more employable because they need not disclose an arrest, and reduce the overall load on the criminal justice system.

Eliminate For-Profit Prisons

Prison is one of the main ways criminals are punished in the United States. Traditionally, upon being determined guilty in a court of law, a criminal may be sentenced to a definite time in prison. Although there may not be an agreement about the objective of prison, the use of imprisoning criminals for justice is universally agreed upon throughout the United States. Every state and the federal government imprisons criminals.

Since George Floyd never made it to prison, it may seem too broad to extend reform suggestions to prison. The prison consideration, however, is much broader than the building itself. Allowing a profit motive to be attached to prisons creates a pernicious incentive to criminalize more behavior that may be better addressed through other methods and keep prisoners longer than is necessary for their rehabilitation and reintegration into communities.

As prisons are used to carry out the public work of justice, prisons are owned by, managed by, and staffed by public employees. The provisions for the prisoners are provided by a public entity. Although prisoners may be required to reimburse the government for a portion or all of their cost of imprisonment, the public entity advances those costs to ensure a certain standard of care. After the war on drugs and the mandatory sentencing introduced in the 1980s, prison populations exploded as did financial and other pressures to create and sustain prisons.

In response to the growth of prison populations, some public entities turned to for-profit prisons to room and board public prisoners. By the end of 2018, the United States had the largest for-profit prison population in the world.

The United States was founded on certain ideals. Those ideals imagined an ideal society. One of those ideals is liberty. Although public welfare may require that someone’s liberty be limited, profiting for limiting someone’s liberty against their will is inconsistent with those founding ideals.

The prison profiteer’s objective is profit which is something other than the public objective for justice.

Public funds spent in profit driven prisons directly work against those ideals. It institutionalizes that “direct work” into the public structure itself. One of the ways profit driven prisons work against these ideals is through the creation of a new role: the prison profiteer. The prison profiteer’s objective is profit which is something other than the public objective for justice. This is a conflict of interest of the highest order. Whatever the invisible hand of the profiteer might look like if it could be seen it would be taking whatever actions are necessary to profit. It would be near impossible to argue that the several billions of dollars received by profiteers annually do not, at a minimum, fight for its continued existence and increased profits.

The prison profiteer doesn’t lobby the congressperson for justice, they lobby the congressperson for more profit.

Immigrant families and children are also held, by the thousands, in private prisons. These “prisons” are given other names such as detention facilities to distinguish them from prisons. Prisons and places where immigrants are held are not properly distinguishable in this way. Both deprive people of liberty and the United States has decided that the deprivation of one’s liberty is punishment for criminal conduct.

The prison profiteer might argue that the for-profit prison is more cost-effective and the savings offsets any evil or unavoidable conflict-of-interest. This argument cuts against another noble American ideal which is that life and liberty cannot be reduced to a calculable profit. Americans are repulsed at the thought of selling children or buying organs for transplant. The idea of seeking court enforcement or a damages judgment for a contract requiring a party to live in another’s basement dungeon for a year is outrageous. Even if the money saved could be justified, decades of research evidences that savings claims associated with for-profit prisons are unfounded.

The total elimination of profit driven prisons restores the relationship between the public entity and justice and eliminates the invisible hand of the profiteer, the conflicts-of-interest, and this evil is de-institutionalized. Reform prisons by eliminating for-profit prisons and the prison profiteer.

Replace Uniformed Officers in Schools with Inspired Educators

Today, tens of thousands of uniformed officers are permanently assigned to schools across the United States. The intention behind placing them there may have originally been good. The original analysis, however, did not consider the entirety of the impact on schools and students. At best, even when uniformed officers achieve the stated goals for being in schools, their mere presence divides the school’s purpose. Schools are institutions of learning. The test would be to simply ask the question, why are uniformed officers in schools? If the answer is to educate and something else, then they serve some other purpose and divide the school’s single purpose of education.

This is not meant to say that a law enforcement officer is not educated. It is not what inside the officer’s mind that is in question. It is the uniform and badge that creates a divided loyalty in the officer. On the one hand, the officer claims that they are in the school to educate. The uniform and badge oblige them to another duty.

Consider the disruption, for example, created in leadership alone. When a potentially violent or violent incident occurs, some look to the principal others look to the uniformed officer.

What if the funding used to place uniformed officers in the classroom was used to place an inspired educator in each school. Inspired educators like Jaime Escalante, John Keating, Erin Grewell, Anne Sullivan, Neil deGrasse Tyson, Andria Zafirakou, Melvin B. Tolson, or Walter Lewin?

What if the inspired educator’s job description was to order student and teacher affections toward curiosity and learning? What if this inspired educator’s job was to teach students directly AND teach the teachers? What if students who would otherwise be disciplined worked with these inspired educators? What if students who are at risk of dropping out of school worked with these inspired educators? The job of the inspired educator would be to teach and nothing more.

An anticipated criticism is that the uniformed officer is necessary for security. There may be schools in which security is needed. The school administration is free to hire security. This is something different than uniformed law enforcement officers in the classroom. The security employee does not educate. The security employee answers to the school’s administration and does not have divided loyalty. The distinction may be illustrated in an incident I remember from high school.

After an away football game, my high school principal received a phone call from the chief of police of the city where the game was played. One of his students, after drinking, underage, to excess, had an encounter with law enforcement. The principal got in his car, drove back to the city, picked the boy up, and took him home. Once at the boy’s home, he told the boy’s father what had happened. There was never a repeat occurrence. That boy grew up to be a man that most people would treasure as a neighbor. A good citizen.

Today, that same student would most likely have been arrested and entered into the criminal justice system. Instead of an inspired educator directing him into a pipeline headed toward being a good neighbor and citizen, today he would most likely be directed into a pipeline headed toward prison.

I cannot close out this thought without addressing fourth-grade literacy. I am convinced that a disproportionate number of children who are not reading on grade level in fourth grade are being directed into a pipeline headed toward prison. Additional inspired educators could:

  1. Direct enormous resources in literacy toward pre-K to 4th grade.
  2. Empower students to be ambassadors in their homes to encourage reading.
  3. Send home books and reading guides with every student as often as possible.
  4. Direct resources available to help parents learn how to read with their children.
  5. Make online resources open access for parents who cannot or will not come to reading classes.
  6. Collaborate with public and private entities to expand access to devices and reliable internet in homes.

When the societal cost of prison is compared to the cost of literacy — the resources dedicated to pre-K through fourth-grade literacy should be staggering. Reform education by replacing law enforcement resource officers with inspired educators.

Reform Healthcare

It may seem like a long jump from criminal justice reform to healthcare reform. It isn’t. Long before an injustice makes its way to the courtroom, it exists in the community. Domestic violence, for example, is clearly a public health issue. The Centers for Disease Control has identified violence as a public health concern. Perhaps some of the attitudes we have that result in criminality are the same attitudes we have that result in sickness and disease. Empowering people to take ownership in their overall healthcare and wellness may result in less injustice overall as well as more spontaneous and robust community responses to injustice when it happens.

Long before an injustice makes its way to the courtroom, it exists in the community.

Neither law enforcement nor criminal justice can be reformed without broader societal reform. Healthcare impacts the full range of human life from birth to death. Healthcare professionals are esteemed and the impact of their opinions can be humanizing or dehumanizing.

The efficient delivery of health care services has a huge impact on employment. Today, health care services make up almost 20% of gross domestic product. To whatever degree this financial burden can be reduced on employers, meaningful employment has the opportunity to grow.

Shouldn’t Patients Own Their Own Medical Records?

Currently, patients may have access to certain parts of their medical records, but they do not own them. Medical records are generally owned by the healthcare professional who created them. It is dehumanizing to request a record that would not exist without the requestor only to be denied the record or to be constructively denied the record through delay or an exorbitant research or copying fee. A federal law establishing individual ownership of medical records and limiting the cost of access to those medical records to the actual copying cost empowers patients to control healthcare information that is intrinsically theirs. Reform healthcare by establishing that patients own their own medical records.

Shouldn’t Patients Make Their Own Healthcare Decisions?

Further, before incurring a medical expense in a patient’s name, express authorization could be required from patients. Many patients visit a healthcare professional and receive an invoice a week or so later from another healthcare professional or entity that they have never heard of and often cannot explain. The patient may have signed a blanket authorization which technically authorizes the expense, but this is a long way from collaborating with the patient about their health care expenses. Patients should be empowered to choose their own laboratory provider, MRI or CAT scan provider, and so forth. Even if patients choose to defer to their primary care professional, empowering patients to make a decision deferment is humanizing.

Shouldn’t Patient Decisions Be Informed?

Patients should be able to make informed decisions about their healthcare providers. Currently, any incident which results in disciplinary action, legal action, or financial settlement by a medical doctor is reported to a national database, the National Practitioner Data Bank. This database is kept private from the general public, patients, and prospective patients. This database could be made public for any medical doctor who is licensed by a government entity or paid by the government through payment such as Medicaid or Medicare. Reform healthcare by expanding public access to provider data in the National Practitioner Data Bank.

Should Patients Suffer Unbridled Healthcare Costs?

Today, almost every state limits the amount of civil damages against healthcare professionals who commit malpractice. Further, they are afforded additional due process protections that are not enjoyed by all other citizens. For example, there are restrictions on the type of evidence that can be used against them that non-healthcare-providers do not enjoy. Often, the burden of proof is higher to prove the liability of healthcare professionals, or a higher evidentiary standard is required to prove a case against them.

There are certain societal pressures, such as expanded healthcare access, that may justify these damage limits and due process protections. Even so, there is no correlated limit on healthcare professional income. This structure supports the healthcare-profiteer who hides behind the protections extended to healthcare professionals to profit. If a person who has been harmed by a healthcare professional’s malpractice is going to be limited in their ability to seek redress, there could be a correlated limit on the healthcare professionals’ income. Reform healthcare by establishing a limit on health care provider profits relative to statutory health care protections.

Make Openness Mandatory

Shouldn’t We Turn On The Light?

Generally, good decisions are based on good information. Good information does not guarantee good decisions. But bad information almost always results in bad decisions.

Where citizens play a role in the government decision-making process, such as in a democratic republic, access to accurate and timely information is required for good decision-making.

The default rule for any data warehouse by a governmental body is openness. Openness is making candid data accessible. The exceptions to openness should be few and limited to security and personal privacy.

Transparency and openness are essential tenets of democracy. Violating these tenets could be raised to the status of high crime in the United States and be a disqualifier for holding public office and public employment. Restated, reform public transparency so that improperly denying a public information request is a high crime and disqualifies the person who made the denial ineligible for public office or public employment.

Shouldn’t We Shut Out the Dark?

On a personal level, we know this. More than any other thing, secrets are the catalyst for divorce and destroy many other relationships. The reason this is so, is that the core of a secret is betrayal and very few relationships survive betrayal. As this works on a personal level, it works even more so on a public level.

There are some narrow exceptions to this broad rule. There are times, for example, when national security requires secrecy. It would be foolish to provide the details of a military operation before it deploys. During times of actual war, secrecy is a necessary public service. Even during times of peace, it would be foolish to post the launch codes for nuclear missiles. Even in such circumstances, secrecy should be as narrow as possible and as short as possible. As soon as the public interest is no longer active and immediately served, openness is the rule.

Data may also be restricted for personal privacy. Where a public actor legitimately collects personal identifiers (such as social security numbers, date of birth, etc.) keeping that data secret is a public trust. Public employees, however, are not private employees. I am not advocating sharing the personal private information of public employees, where it may, for example, be a breach of trust to disclose a private citizen’s earnings information, the earnings of public employees must be disclosed. Persons or entities who receive public funds have limited privacy rights. Data about the salaries of individuals employed publicly are not protected. Medical professionals who receive payments from Medicare, Medicaid, or the Veteran’s Administration are not private.

Executing these disclosures is simple and could be accomplished by federally establishing disclosure requirements. These two databases could be established and maintained federally to insure openness:

● National Database of Financial Interests for Holders of Public Office and Candidates (Includes Political Donations)
● National Database of Financial Interest for Public Employees

There is one particular area of concern surrounding openness in the United States that can be achieved with little legislative effort — dark money. Dark money is the campaign funds that are raised for the purpose of influencing elections by nonprofit organizations that are not required to disclose the identities of their donors. What sort of good could ever hope to be achieved through dark money?

Reform campaign fundraising by eliminating dark money.

Recap

Although it seems like an eclectic list of reforms, the question to ask is would George Floyd be alive today if we enacted these reforms? If his healthcare was managed, would Mr. Floyd have been engaging in a $20 transaction in the first place? Would he have been able to manage the interaction with the cashier differently? Would the law enforcement officers have been different people? Would they have acted differently? Would Mr. Floyd have been arrested at all?

The questions surrounding Mr. Floyd’s arrest and death are endless. They all seem to suggest that long before there was injustice in the courtroom there was injustice in the community. And communities can be reformed.

  1. Reform law enforcement officer employment history sharing by creating a database that is national, compulsory, real-time, and open.
  2. Reform qualified immunity so that it only protects law enforcement officers working in the line and scope of their employment during times when a reasonable person could not make a contemplative decision.
  3. Reform criminal justice funding by eliminating funding based on stops, arrests, or ticketing.
  4. Reform criminal justice by zealously committing to due process for every person.
  5. Reform prisons by eliminating for-profit prisons and the prison profiteer.
  6. Reform education by replacing law enforcement resource officers with inspired educators.
  7. Reform healthcare by establishing that patients own their own medical records.
  8. Reform healthcare by expanding public access to provider data in the National Practitioner Data Bank.
  9. Reform healthcare by establishing a limit on health care provider profits relative to statutory health care protections.
  10. Reform public transparency so that improperly denying a public information request is a high crime and disqualifies the person who made the denial ineligible for public office or public employment.
  11. Reform campaign fundraising by eliminating dark money.

Brandon L. Blankenship is a university professor, instructor, and speaker in leadership, law, and ethics. He and his wife live on a hobby farm in Alabama.