Betz: Real, specific demands to confront systemic racism in Indiana

We are living through a great awakening. It has not all been pretty and peaceful. There has been violence, often sadly at the end of a police baton. There have been burned buildings and broken windows. There is the collective frustration Fannie Lou Hamer spoke of when she said, “I am sick and tired of being sick and tired.”

Now what?

The Black Lives Matter movement jolted us from our self-satisfied stasis. But to change things, we must do things. If silence is violence, then speaking without specifics is only nominally better. To bring the justice protesters so desire, it is time to recognize the deeply embedded systemic racism in Indiana and develop a list of specific demands to yield measurable results. The risk of not doing so is too great: the country simply cannot become further torn over racial injustice.

We must define systemic racism in Indiana and acknowledge its painful existence as structural obstacles to fully participating in American life. We have had some good efforts so far, from the CEOs of Lilly and Cummins, David Ricks and Tom Linebarger, as well as Indianapolis Mayor Joe Hogsett and Indiana Chief Justice Loretta Rush. But these examples are not enough. We need to get beyond acknowledging the problem, to solving it.

Here are five specific next steps we can take to create a path to a better place.

1. Real transparency with police body cameras and policies governing their use. Body cameras for every law enforcement officer in Indiana is a start. Many of us were astounded to learn that Marion County was without body cams, especially when federal grant money was available to purchase them. Indianapolis is the largest city in the nation to not have body cams. This indicates indifference to wrongful police conduct. Best practices say the body camera should always be “on” and officers should not be allowed to view the body cam video before writing a report.

2. An independent citizens review board of police. Instead of a politically appointed board, this new citizens review board needs to be real, independent and directly accountable to voters, not beholden to politicians and police unions.

Police unions have co-opted the politically powerful (e.g., no body cams until recent protests demanded them). The new board should also examine any act of physical contact resulting in harm to a citizen by a law enforcement officer in Marion County, not just for police actions resulting in death or serious injury. We pay these law enforcement officers, supply them with weapons and pay their commanders; therefore, we also have a right and responsibility to examine the body cam video anytime a police officer makes physical contact with a human being or animal in Marion County, regardless of a complaint.

This review board should also have the independent authority to follow up on any such police action. For too long, such investigations have been conducted by the same law enforcement agency that committed excessive force. Independence is fundamental to any real investigation, and for the most extreme uses of force, independence should be mandated.

These review boards should be established by legislation for every county, and not created and negotiated in each county. This kind of real and independent monitoring will assure greater oversight and more credible citizen understanding of the use of force by police. In Indianapolis, we now only see random samples of horrific video scenes, but what is going on daily that we never see? There also needs to be systematic tracking of all uses of force on an annual basis. A fundamental rule: if you can’t measure it, you can’t manage it.

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

This vividly shows the blatant systemic racism that exists in our state and city. The permission structure that requires the assent of 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% effective. In those 50-plus 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 remnant of Jim Crow laws. Blacks only have available antiquated federal civil rights with outdated monetary caps for emotional distress damages that were last updated in 1991 (from their original passage in 1964), depending on the number of employees. For employers who have 14 to 101 employees, it is capped at $50,000 for emotional distress damages, 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 that has so deteriorated in the value of its monetary damages is another form of systemic racism.

4. Real elections of Marion County trial court judges by voters. Of the 92 counties in Indiana, Marion County has a unique selection process for its judges. For 40 years, voters cast meaningless ballots in a sham election, but after this process was declared unconstitutional in 2015, voters now only have a vote to retain sitting judges.

Thus, after the 2015 federal court ruling declaring that votes were “meaningless” in Marion County for judges, the response by our political leaders in 2018 was to just take away voting in any way for the selection of judges. That’s a solution, I suppose. Not a real or fair solution, but it is a solution that significantly keeps the power of picking judges in the hands of political parties, not the voters of Marion County.

Marion County did not have its first Black elected judge until 1958, which was almost 40 years after the first female judge in 1919. But in the 62 years since the first Black judge, besides the current 13, there were fewer than 25 Black judges in those 62 years. And the appellate courts in Indiana are even worse. There is only one Black judge on the 15-member Court of Appeals and precisely zero justices on the five-member Indiana Supreme Court. Only two Blacks have ever served on the Indiana Supreme Court in its 204-year history.

5. A real trial court focused on law enforcement excessive force cases. Just as a commercial court was created by the Indiana Supreme Court to streamline business cases, we are in far more need of a court to streamline cases of excessive force by police. There is abundant evidence that an excessive force trial court in Indiana is needed to swiftly process these cases and deal with their unique nature.

The fact that the Indiana Supreme Court created such a commercial court using additional resources and money for businesses to have their own streamlined court system shows that an excessive force court could and should be created. 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.” Such a specialized court as well as the other demands should be considered and action taken to address systemic racism.•

• Kevin Betz is senior emeritus partner at Betz+Blevins and has practiced civil rights law for more than three decades in Indiana. Jamie Maddox, Courtney Endwright and Abigail DeCoursey of Betz+Blevins contributed to this commentary. Read the unabridged commentary at www.betzadvocates.com. Opinions expressed are those of the authors.