by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Earlier this month the Department of Justice finally released a report summarizing its investigation of the Ferguson, Missouri Police Department. Some have denounced the report as little more than irresponsible race baiting. Others have praised it as a much needed expose of a rogue agency. Personally, I think there’s a lot of truth in both of those assessments. However, for those of us who are fortunate enough to live in North Carolina, I would say that the main thing to be learned from the report is that we are very lucky to be here.
Despite its focus on race, what the DOJ report really shows is that the underlying problem with the criminal justice system in Ferguson is not that it is racially biased; the problem is that it is predatory. Instead of protecting the public, the system operates primarily as a mechanism for collecting revenue.
The report notes that, "The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved." It also states that:
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as a means to compel the payment of fines and fees that advance the City’s financial interests.
Both claims are supported with a wealth of details, and the picture that emerges is of a shakedown operation that victimizes the poorest members of the Ferguson community and leaves them feeling miserable, suspicious, and hostile.
If the problems that the DOJ Report describes were unique to Ferguson, none of this would be particularly significant for North Carolinians, but they are not. On the contrary, other sources reveal that municipalities throughout Missouri, and throughout the country, have been conducting similar shakedown operations for years.
Happily, North Carolina has largely avoided the problems described in the DOJ Report. There is very little here in the way of predatory policing, and there is nothing comparable to what has been going on in places like Ferguson. Which is why, as I’ve said, the report should make us appreciate how lucky we are to live here. However, it also raises a question: Why have we been so lucky?
When I first began to think about that question, I thought we owed our good fortune entirely to the NC Constitution, which states, in Art. IX, Sect. 7:
The clear proceeds of all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the state, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.
However, when I discovered that many states, including Missouri, have similar constitutional provisions, I realized the answer must be more complicated than that.
Further research revealed that Missouri’s Constitution includes multiple provisions dealing with fines and with education funding, and those provisions have been interpreted in ways that exempt many municipal courts and many types of civil fines from the educational use requirement. It is these exemptions that have made it possible for municipal courts in Missouri to be "compromised" by local officials’ demands for revenue, as they were in Ferguson.
North Carolina’s Constitution, on the other hand, includes only the one relatively unambiguous provision quoted above, and North Carolina’s courts have interpreted that provision to apply broadly, even to most municipal ordinances. What is more, in North Carolina municipal courts cannot be compromised by demands for revenue because, under our unified court system, we have no municipal courts!
In view of all this it seems clear that a big part of the reason North Carolina has suffered less from predatory policing than other states is that we have better institutions, i.e., a better constitution and a better court system. However, as the philosopher Karl Popper liked to say, when it comes to the defense of liberty, "Institutions are like fortresses. They must be well designed and properly manned." Fortunately for us, our institutions have been properly manned.
When I asked Jeffery B. Welty, who’s a professor of public law and government at UNC, why we have so little predatory policing in North Carolina, his initial response was that, "It may be due in part to the professionalism and policies of our law enforcement agencies." The more I’ve thought about that, the more I agree. And I’d go a bit further. In my experience, North Carolinians are, in general, a remarkably decent, respectful, fair-minded group of people. I suspect that’s one of the main reasons our law enforcement institutions tend to be both well designed and properly manned. And I know it’s one of the main reasons I feel so lucky to be here.
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