Reconsidering Tough-on-Crime: An Interview with Al O’Brien

by Noemie Maxwell

“Simply stated, we should tell our political representatives that they will have the best outcomes, regarding criminal justice issues, when they base their decisions on empirical evidence about “what works” rather than on knee jerk reactions to the crime of the week. There is no doubt in my mind that our overtaxed prison system is primarily the fault of politicians trying to show their constituents that they are tough on crime. And both political parties are responsible as well. I would like to say that I am innocent of doing the same thing, but I am not.

“I do think there is some hope that we can actually change the system simply because politicians on both sides of the aisle are starting to figure out that we can no longer afford to run the system like we have since the 1970’s. If they can get away from the soft on crime issue and turn it into a smart on crime issue, things will change quickly.” – Al O’Brien, 2015.

In the late 1970s, Al O’Brien, a Sergeant with the Seattle Police Department, authored one of the first policies in the nation prohibiting most uses of the chokehold by police. Today, the research he relied on is still cited in support of banning this maneuver for jurisdictions, including the federal government, that continue to allow it.

These themes of evidence-based-policy and appropriate use of force run throughout his career.

A Democrat known for working across party lines, O’Brien represented Washington’s first district in the state legislature from 1996-2010. He chaired the House Public Safety Committee for a decade, upholding evidence-based criminal justice policies against some of its most vigorous challenges.

O’Brien’s tenure as a legislator came at a key time – during the latter half of an historically unprecedented tough-on-crime wave that hit Washington hard. Our incarceration rate more than tripled. Billions were poured into new prison construction. By 2007, 1 in 30 state adults were behind bars or under criminal supervision at any one time. The impact has been racially disproportionate. And, once again, we’re on the brink of building another $250+ million prison.

It could have been even worse. Though our incarceration rate tripled, it increased more slowly than the national average. Washington led, nationally, on a host of evidence based programs like drug court. And we’ve led on reducing the percentage of people in prison for drug crimes: from 21% in 2003 to 7.5% in 2015. The culture of evidence fostered by O’Brien and other policymakers has helped prevent some of the most destructive excesses of both crime and punishment – and positions us for much needed reforms that are now high on the political agenda.

As O’Brien notes, he still has “that political bug” and continues to advocate for smart justice, including ending the death penalty, restoring higher education in prisons, and restoring parole. One organization he advises is Washington Coalition for Parole, cited in a recent Seattle Times article that reported on the growing parole restoration movement.

O’Brien is a marathon runner who competes in several races a year. He looks the part: light on his feet, energetic and lean. He teaches forensic science and restorative justice at Seattle University and is in the process of writing two books on these topics. We talked on two days, wrapping up our second conversation after he fielded a short phone call. He was arranging the details for a visit with a patient at Harborview Hospital, where he volunteers to administer communion.

 

Al O’Brien: I’m strongly opposed to the death penalty, have been for years. I opposed it even when I worked as a police officer. There are just too many things that can go wrong.

I grew up thinking – and I felt during my time in the criminal justice system – that once in a while a guy got falsely convicted but, most of the time, there was nothing to fear. I came to find out that that’s not the case. There are a lot of people in prison who didn’t do the crime.

Noemie Maxwell: You thought that even when you were a police officer?

O’Brien: I remember standing in the Greenwood area when there had been kind of a mini-riot one summer. And after it calmed down the protesters were on the curb and they were yelling at us that the system sucked and, of course, I had to say, well, it’s a good system, it’s the best we can find. I bantered back and forth with one of them about wrongful convictions and I just wasn’t buying what he had to say. But nowadays I’m very cautious. I teach forensic science and one of the things I stress to my classes is “Do Science,” do the right thing. If the evidence you’re looking for is there, then get it. If it’s not, then don’t stretch it. Forensic scientists should not be advocates for the state or the defense.

Maxwell: And do you think that happens sometimes?

O’Brien: Yeah. It has happened. Less and less because more people are being exposed to the possibility. But still every now and then you see a false conviction. There was just a big deal that was in the media just a month ago about the FBI and the hair sample analysis.

Maxwell: How many cases did it invalidate? 

O’Brien: I’m not sure – but quite a few. I believe it was 200.

Maxwell:  So now that there’s more awareness of the fallibility of our methods..

O’Brien: CSI. You know the TV show, got a lot of people interested. Before CSI, when somebody went to college to be a cop, they got a criminal justice degree with the idea of being a police administrator. That’s the direction the education was focused, to make them into good administrators. But now you’re getting more science majors and more scientific minds in criminal justice.

Maxwell: And you think the TV show helped?

O’Brien: (Nods) It’s the TV show.

The Innocence Project over the last decade or so, I think the number is 329 wrongful convictions, I’m not sure – but it’s up there. That was using hair analysis, eyewitness reports. And eyewitness reports were the biggest thing, the most common fallacy in wrongful convictions. Let’s say you have a situation where there’s been a heinous crime against a child and the community is incensed. The community wants blood. The prosecutor steps up and makes a case based on an eyewitness report and no other validity. Some prosecutors will use the sense of outrage in the community to get a conviction even if there is no other evidence than the eyewitness report.

Maxwell: Even if there’s just one eyewitness report.

O’Brien: Right, because there’s so much pressure. Here in King County, that’s not going to happen. We’ve got the cream of the crop here in (King County Prosecuting Attorney) Dan Satterberg. He wouldn’t run something like that. In fact, the vast majority of prosecutors wouldn’t run with just an eyewitness report. They’d need fingerprints or DNA or something like that. But you’ve always got those folks out there.

There’s a video I use a lot (in class), Death by Fire. Do you know that one?

Maxwell: No.

O’Brien: It’s a Texas case. I showed (the video) to my class. The guy who was convicted was not really a nice man. He was a woman abuser. His wife, he hammered her. The guy had a bad reputation. And so this fire started. He managed to get out of the house. But his three children died, three young girls. So, right away the fire department and police figured this guy was dirty. This was the early days of fire science and there wasn’t a lot known. A couple of people on this video refuted the findings that supported his conviction. Governor Rick Perry said, oh, this guy’s a slime ball and he was executed. That’s all politics! That doesn’t deal with guilt or innocence. A man died because Governor Perry was more interested in looking good politically than the truth.

These groups like the Innocence Project, and there are some others out there, they’re putting pressure on people to make sure that you can prove your case. You have to prove a guy guilty beyond reasonable doubt. And in a lot of these cases there’s doubt there but prosecutors or whoever runs the show buffaloes the jury into coming to a guilty verdict through drama, revenge – different motives. Again, if there’s some person who’s killed in a heinous way, the community wants revenge. If the prosecutor gets behind that, he can move with it.

Maxwell: Is this one of the reasons you got interested in teaching forensics and restorative justice at Seattle U?

O’Brien: The Restorative Justice Program at Seattle University was started a number of years ago by a Jesuit, Michael Kelleher. He taught me. I went to school there. Then he got too old and the thing kind of lapsed, nobody would teach it. There was nobody to head up the concept.

A lot of this stuff is political. You pass these tough sentencing laws – drugs is another area – because if you don’t you’re called soft on crime. It doesn’t make any sense empirically. But you want to look like you’re tougher on crime than the next guy. And then you end up with this mess like you’ve got in the prison system with all these “Life Withouts.”

Maxwell: So it doesn’t make sense empirically in terms of protecting public safety, but you don’t want to be called soft on crime.

O’Brien: You want to show that you’re tougher than the next guy.

Maxwell: And so you connect that with having too many people in prison for life sentences?

O’Brien: Yes, and Three Strikes is an example. Life Without Parole is another for some people.

Maxwell: How about Truth-in-Sentencing? I heard that Washington was the first state to pass a Truth-in-Sentencing law.

O’Brien: Well, it actually was a federal movement. The feds started it. Then we were one of the first. I’m not sure we were the first. It’s wrong-headed. I was against it from the get-go.

Maxwell: Why is it wrong-headed in your opinion?

O’Brien: Because people mature differently. They respond differently to prison systems. Some see the light right away. They get in prison and in a year or two years they “get it”. But they can’t get out. Because they’re on determinate sentencing. So they sit in prison. It costs the taxpayers more. It builds up anger and disrespect inside and outside.

Maxwell: Anger and disrespect on the part of the person who’s in prison?

O’Brien: Anger and disrespect on the part of the person in prison and family members outside. If you make parole available and somebody’s ready to go out, they can go out. If they fail, you have a hook – you can take them back. You don’t have to run them through the court system.

See what was wrong was that Guy A would get a sentence and then he’d get paroled and serve maybe 18 months. And Guy B does the same crime and he goes in prison and he serves 10 years. Same crime, see. It’s not because the system is unfair. It’s because the guy with the longer sentence doesn’t try to change his behavior.

But the Truth-in-Sentencing bill treats everybody with the same broad brush. And people are not the same, they’re different. They respond differently.

Maxwell: One of the things I noticed when I read about your background, your concern for people in prison, that you bring communion to people who are hospitalized, that when you served in the legislature you were one of the few Democrats opposed to abortion, and you’re affiliated with Seattle University. So I’m assuming that – I’ve forgotten the Catholic term – it has to do with the sacredness of all life. Would you say that this is a driving philosophy or force in your life?

O’Brien: There was a shooting at an IHOP. This was December 18th 1984. It was cold December day. One of my officers, Nick Davis, wanted to go get a cup of coffee at the IHOP up there on Madison. He was at roll call at 3:30, he was there. And then he took off. And then I had another roll call at 4:30 and then I went on the street. And pretty soon I hear him on the air, on the police radio, I could hear he’s running and he’s calling for backup. So I got there. And basically what had happened was this homeless guy had been at the IHOP and had breakfast and left without paying. He left without paying just as the officer was arriving. The cook is chasing the guy out the door and the officer joins in the foot chase and catches up to him, and the homeless guy reaches over and grabs the officer’s gun and bang bang shoots him three times.

So I get there and it’s a madhouse. People all over the place. The officer’s down, an aid crew is working on him. So I go looking for the suspect. As I arrived at the scene I asked one of my officers, a woman officer: “What did you see?” And she said, I saw a guy run into that building over there. So I go into the building and there are maybe a dozen guys sitting around at an AA meeting. I asked, did you see anything? They said, somebody came in and ran into the women’s restroom. So I cleared them out and called for two officers with shotguns and another officer so there were four of us. And this was in a basement space so there were concrete pillars that were holding up the rest of the building. The dead officer’s gun was still missing. So I put every officer behind a pillar in case the guy came out shooting.

I told the officers, this is not a shooting gallery. We’re going to try to take this guy alive. If you feel your life’s in danger, go ahead and shoot him. But otherwise we’re going to take him alive.

Then I challenged the guy – I said come out with your hands up. I’m about as close to the guy as I am to the front door here.

Maxwell: About 10 or 15 feet?

O’Brien: Yeah, we’re real close. There’s a couch between us but couches aren’t going to stop a bullet. So I’m standing there and I’ve got my gun on the guy and he’s got the gun down at his side and he’s swinging it back and forth and he’s looking around and he’s talking incoherently. It didn’t make sense what he was saying. Now and then he’d say goddammit. I was saying, “Drop the gun, drop the gun.” So he looks at me and he ducks back into the women’s room. I challenged him again. And then I see his hands around the corner of the door jamb indicating that the gun is not in his hands. I said come on out, kneel down, we’re all around him, I advised the guy of his rights and sent him into the detective unit and then I went into the women’s restroom and the dead officer’s gun was sitting on the table.

Maxwell: The officer died?

O’Brien: The gun’s laying on the table so I just backed away and got the homicide detectives up there to investigate.

Anyway, the reason I told you about that is that I don’t believe in killing anyone. I was in Vietnam before I was in the police department and I was in quite a few firefights. You shoot back if they’re shooting at you. But if they give up, you stop shooting. It’s the same philosophy there. We’d go out after dark into the bushes, into the forest, and lay ambushes in the trails. There was a curfew, so anyone who came through our ambush was suspect. But sometimes the people who walked through there might be farmer Jones coming back from the fields. In a case like that you’d call cease fire, cease fire. You’d scoop up the ones who got shot and give them to the medics to fly them out by helicopter to the hospital to get fixed.

 

Maxwell: Is that where your opposition to the death penalty springs from?

O’Brien : I’m opposed to the death penalty for a number of reasons. It depends on the quality of the defense attorney you have. If you’re poor or indigent you’re not going to be able to afford a high-powered attorney so you’ll get lesser representation. If the guy’s really a threat to society, lock him up and throw away the key. But don’t sentence him to death.

Maxwell: Do you think there should ever be Life Without Parole? Or do you think that every person should have access to a review process?

O’Brien: I think there should be a review process. But at the same time, there are some guys who are just too dangerous to be out. Even a lot of them would keep themselves locked up because they can’t trust themselves.

Maxwell: One of the objections I’ve heard from victims who object to parole being available is that it’s like torture for them to have to go to parole hearings and to anticipate that the person who harmed them or their loved one might some day be free to hurt them again. Do you see any way to make that better for the victim?

O’Brien: The victims have to take part in this. If they are strongly opposed to parole they have to come forward and say why. Maybe there’s something there that we don’t pick up on.

Maxwell: What would you like to see happen? Are there changes in legislation or the way we structure our response to crime or are there any emerging trends you see as promising in reducing both crime and the number of people we lock up?

O’Brien: Well, the best thing we can do is improve education for children, improve job opportunities, more infrastructure investment locally. I see so many Black guys in a bind because they’re Black. They’re treated like second-class citizens from the get-go. Look at what happened to Obama recently. He started this Twitter account. And within a couple of hours after his announcement people were making racist remarks on his account. What the hell is wrong with people? If this happens to Obama, the average Black guy is really going to come up on the short end of the stick.

It’s like the economic boom we’re having in Seattle. Seattle is going gangbusters. Have you been downtown Seattle lately? Next time you’re down there, look at all the tower cranes, the construction sites. Seattle is going gangbusters because of Amazon. Amazon’s moving its headquarters to Seattle. They’ve got three 31-story skyscrapers going up. The area around where I grew up, the Denny Triangle, was nothing but warehouses and car lots when I was a kid. There was nothing there. Now it’s condos. That’s where Paul Allen is building, setting up its headquarters and building condominiums and apartments for its high-tech workers. The downside of this is that it leaves out the working poor, the working stiffs, the janitors and cooks and service workers. They’re all getting pushed out of town because they can’t afford the new rents.

We’re talking at Seattle U about reaching out to people who are poor – but they’re actually getting pushed out of the city. They can’t afford to live here.

Maxwell: How can this be fixed?

O’Brien: Everybody’s working on that. The Mayor’s working on it. A lot of the business community, all they care about is the bottom line. They’re investing millions and millions in these properties and they don’t want to rent it below market rate. And market rate is high right now.

Maxwell: I did an interview with Chase Riveland a couple of years back and he referred to what he called “drive by legislation”, which I thought was a good metaphor. People see something bad happen and they believe they can fix it with legislation that toughens punishments.

O’Brien: Absolutely.

Maxwell: But you can’t fix everything with legislation, can you?

O’Brien:  What you do is you run scenarios. You think it through. The way I got into this was when I was with the Police Department. I graduated from Seattle University with my Masters degree and the Chief took me off the street and put me in the office writing policy. So they’d bring me all kinds of problems, you know, police shooting at a moving vehicle, use of the chokehold. I’d write a policy and then I’d send it out to the union, send it to management, to the courts, to King County Jail system, whoever was to be dealt with. I’d look at state legislation. I’d work with all the players and see if I could get something negative back on my idea. You don’t get married to your idea because, 9 times out of 10, you don’t have a full grasp on what you’re talking about. And somebody who’s close to it writes back and says what the hell are you talking about, you missed this, that, or the other thing. And so you read those and send it back. Finally, you get something that everyone can buy into.

I’ll tell you another story.

There was a Black guy who was picked up by Seattle police for something and he was booked into King County jail. This was years ago. I was writing policy for the Chief at the time. So it probably would have been around ’73 through ’76. He was booked into King County Jail and there was some kind of disagreement between him and the jailers. And the jailers starting fighting with the guy and they killed him. They killed the prisoner with a chokehold. That week, there was a big hue and cry in the newspaper. All of a sudden the Chief comes walking down to my end of the 10th floor and he’s got these guys from the NAACP with him. They’re having their annual convention. And the Chief says, tell them what our policy is on the use of the chokehold, Al. And I say, we don’t have a policy on that.

He kind of stammers and stutters and he says, ok, and he starts walking out and then he turns and looks at me and says, write a policy. This is before the Internet. So I start going out to Suzzallo Library at the UW. I’m sitting there going through the stacks, FBI manuals. I can’t find squat. So I happened to run into Dr. Donald Reay who was the Chief Medical Examiner in King County. He and I went to Seattle University together. But then he came out here to be an administrator. So he needed a degree in Public Administration and we were in the same program. I said, Doc, where do I find information on this? And he says, well, you’re in luck. Because I happen to be doing the first-ever empirical article for a medical journal on the use of police chokeholds and I’ll give you an advance copy. He says, I got a bunch of FBI agents with breathing apparatus, heart monitors, and then I had them choke each other out so I could report what happened with the electronic monitoring on their hearts, their brain waves, their breathing. And what his research showed was, basically, you never know. In most cases, you’ll be lucky. But sometimes you won’t. In some cases, your blood vessels are close enough to the surface of your skin that you can bust them in a chokehold.

What his research showed me is that, if you’re going to choke someone out, you should have the same status as if you were going to shoot them. For years, police had used chokeholds as a submission method. And there was just recently someone who was killed using one.

Maxwell: Can you explain what you mean by saying that, if you’re going to use a chokehold on someone you should have the same status you’d need if you were going to shoot him?

O’Brien: You should have the same level of gravity as if you were going to shoot them. Because the chances of killing them are there. You really don’t know. Research shows that there’s a probability of killing someone – not a real high probability, but it’s there. I wrote the policy just as Dr. Reay had written it, gave it to the Chief. The Chief signed it and it became department policy.

Maxwell: This process you describe of creating new policies and getting input and buy-in. When it comes to groups like Washington Coalition for Parole that want to make a major change in the law – can you reflect on ways of moving that forward?

O’Brien: That was called the concurrence process. Someone would complain or bring an issue to my attention. I’d write something up but I don’t have expertise in every area. So we’d have to connect with all the impacted groups, the police, unions, King County jail, the prosecutor’s office, the municipal court, see, there are always a lot of players. Someone is always going to point out that you missed something.

On the parole issue, using concurrence as an example, you want to have input from police, prosecutors, victims’ advocates, people who do the day to day work in correctional institutions and so on. You have to have something solid to propose and then invite people to come in. People may ignore your invitations at first but you have to keep asking.

If you’re married to an idea in a particular form and you don’t want it threatened that’s going to hold things up. You need to bring all the players in, create the roundtable discussions – not just one discussion, but many. You can’t do it overnight. That’s hard. Guys inside want a chance. If you’ve already been in prison for 20 years and you’re told “it takes time”, that’s hard to hear.

Maxwell: Talking about change – when it comes to the recent media attention on cases of white police killing un-armed black people and the response of Black Lives Matter. Do you have thoughts you’d like to share on that?

O’Brien: I think the reason we’ve seen so many, and I’ll be candid here, white officers killing black suspects nationally is that these white officers are scared of the young black men. What I think police are going to have to do is change standards on the use of firearms and limit only to self-defense. That kid who got killed in Texas, who was jumping up and down on cars – he should have ended up in jail, not dead.

Maxwell: So you see a need for police, nationwide, to be trained differently?

O’Brien: Yes. Officers need to know how to handle situations without rushing in and getting trapped. There needs to be a real emphasis on crisis intervention. You have to learn how to de-escalate. When the facts don’t match your prejudgment, you’ve got to be nimble on your feet and respond according to the facts, what’s actually happening.

The Seattle Police Department has a crisis intervention approach that is a national model. It’s based on de-escalation. What we’re doing in Seattle is being looked to across the nation. It works.

Maxwell: What you say about the fear factor and prejudgment makes me think of research on implicit bias in healthcare. The research shows that most white people have unconscious bias in the way they respond to people of color, black people especially. In healthcare, this translates to worse outcomes for black people. Are you talking about implicit bias?

O’Brien: Yes. A lot of people, maybe all of us, have bias that determines how we react to others especially under stress. That needs to be part of the training. It’s not a bad thing. It’s not done on purpose. When you’re aware of it you can deal with it.

The Seattle Department is doing a good job. The new Chief, the entire leadership, of that department and the Mayor’s office. They’re leading very effectively on this.

The problems that led to the federal investigation were going on for years. Things would happen. Police would make some horrendous error. There would be a public outcry. Police would respond, well, we’ll get experts. They’d team up with researchers. And then attention would be diverted, things would go back to normal. That was the way we operated since WWII.

Maxwell: And you’ve seen improvement?

O’Brien: Yes.

Maxwell: Police get this high-visibility blame when there’s a shooting but it goes so much deeper. My father was a WWII veteran and his generation and mine got billions of dollars in home loan subsidies through the GI bill. Almost all of that money went to white people. More than 90% of the farms owned by black people have been lost since the early 1900s – much of it because of discriminatory laws. People wonder why so many black people are poor and live in cities. Even just on the one matter of land ownership/

O’Brien: If we look at the history of this country, Indians displaced, Africans brought in as slaves, Chinese brought in to build railroads and then sent out when they weren’t needed, this is all part of our culture and we still see it in politics. The Black Lives Matter disruption at Westlake, I’m glad that happened. It keeps this in the public view. People forget, attention gets diverted and nothing changes.

Maxwell: How should white people respond?

O’Brien: White people should know about the kind of things we’ve talked about. The average white person off the street has no concept, even today, of the struggle that black people face.

Redlining, the inability of black people to get loans and mortgages, was a big deal in Seattle and we had it legally until the late 1960s. Even today, as Seattle gets gentrified more, it’s getting whiter. We’re having an economic boom that’s putting us on the map. And it’s pushing people of color further south.

The people who got hurt worst during the recession of 2008 were black people and other people of color. Even with Seattle’s $15 an hour, you can’t afford these rents.

Maxwell: What has made you aware?

O’Brien: It’s a mixed bag. My police work, my legislative work, talking with my wife, who does housing for people with barriers. Reading – I’ve been reading a book, Racial Justice and the Catholic Church.

The real estate boom in Seattle now, people are looking only for profit. They forget their responsibility to the poor. We’ve priced people out of the neighborhoods that they work in. They don’t have the option to live close to work, they can’t afford it.

I’ll tell you what I’m focusing on. I’ve been meeting with a Ph.D. student who is working on her dissertation on Vietnam veterans. We’re talking about my experiences, how they’re affecting me now. What I said to her yesterday is that I don’t feel that I’m doing enough for the poor. Everything I’ve done in my life has turned to gold. It’s a gift. Recently I went to a silent retreat run by Jesuits and talked with a spiritual advisor. It’s my responsibility to share. How can I do that, who can I work with? I don’t want to reinvent the wheel.

When I was a police officer, most of the time, my work was of that nature – not crime-fighting but service. About 75% of what you do is service. I remember a call where an elderly man had fallen. He was disabled and didn’t have a way to get out of the house. He hadn’t talked with anyone for weeks. When he was on his feet, he could make it around his home, kind of bumping from wall to wall. But once he fell, he couldn’t get up. I helped him back up and he didn’t want me to leave and I sat with there for awhile, just talking. Police officers do a lot of that. The public image is of the warrior but, really, day-to-day we’re more like guardians.

When you approach people in that role, as guardians rather than warriors, they’re more likely to help you. They’re more likely to give you information. You do have to be ready to switch “like that” (snaps his fingers). But most of the time you’re in a guardian role.

Maxwell: The incident you described when you were responding to the officer being shot, that sounds like you’re in a warrior role, it sounds like a combat situation to me.

O’Brien: Yes. That was. That day I’d run to work, maybe 10 or 12 miles. I was in top shape. My brain was working at warp speed. Three or four things were going through my mind at one time and they were not jumbled, they were all clear. But generally police work has to do with service. The public is not aware of that. The job is not about power – but about service.

 

 

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