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November 17, 2016

The NSU Trial: Responding to Institutional Racism in Law Enforcement (Part 3)

By Erika Asgeirsson and Zahava Moerdler

In this four-part blog series, Human Rights First is examining the crimes and trial of the National Socialist Underground (NSU), a neo-Nazi terrorist cell whose crimes were left unsolved for over a decade. It will also preview our upcoming report on rising antisemitism, xenophobia, and intolerance in Germany, a trend underscored by structural racism and the inadequacy of state responses to hate crimes. Read part one here and part two here.

The NSU case pulls into focus the need for Germany to address the institutional racism evident in law enforcement agencies. This is a shared challenge. High profile killings of African Americans and people of color have ignited a discussion of institutional racism within law enforcement in the United States as well. Police violence often goes unpunished and accountability mechanisms have proven ineffective.

The path forward for the United States and Germany involve several similar recommendations. In addressing institutional racism within law enforcement, the United States and Germany can learn from each other.

The recommendations provided here are not meant to be an exhaustive framework to rooting out institutional discrimination. Rather, they highlight the similar problems we face and provide suggestions on how to address institutional racism in both countries.

Acknowledge the problem of institutional racism. One of the reasons institutional racism is so hard to address is that it is often not direct or overt, but instead manifests through policies and procedures that have a disparate impact on members of minority groups. Precisely because it is not obvious, it is even more important for a country to recognize it has a problem with institutional racism.

In light of the NSU case, several German parliamentary investigation committees (PUAs) formed to understand how the NSU was able to operate for so long without being detected. The PUAs have not focused on the central issues of a racial motivation and the discriminatory work of the intelligence and security authorities. The PUAs have mostly considered the problem as failures of coordination, instead of considering institutional discrimination as a root cause of the investigation’s failures.

In its most recent review by the U.N. Committee on the Elimination of Racial Discrimination (CERD), CERD asked Germany to provide follow up information on the NSU trial. Germany opened its follow-up report stating, “We categorically reject the blanket accusation of institutional racism.” Germany’s resistance to identifying a problem will make it nearly impossible to address.

The United States has made some gains over the past few years to recognize that institutional discrimination in law enforcement is a problem. In 2014, President Obama established the Task Force on 21st Century Policing, which was a collaborative effort to identify best practices in community policing and strengthening trust between law enforcement and the communities it serves. This task force was an important acknowledgement of the problem and a step toward comprehensive policy solutions.

However, the problem is still not fully acknowledged. Change cannot only come from the top down—local police units and police chiefs must recognize that institutional racism is a problem. Pushback to the Black Lives Matter movement shows that recognition of this problem is very far from universal and that many deny the impact of institutional racism. Moreover, we need to be open and direct when talking about institutional discrimination. The Obama Administration has been criticized for characterizing the issue as a lack of trust instead of institutional racism. 

Increase training on racial discrimination and measures to combat racial discrimination. Because institutional discrimination is not always overt, it takes a conscious effort to overcome its effects.  Training is crucial is this regard. Civil society organizations participating in Germany’s CERD review and CERD’s concluding observations called for police training programs on racial discrimination, measures to combat racial discrimination, and reporting and investigating hate crimes.

Just like any other policy or practice, police training can itself be a product of institutional discrimination. Organizations working on these issues in the United States have highlighted how current police training contributes to the problem. For instance, training often overemphasizes use of force and does little to teach officers de-escalation techniques. Training should be revised to address manifestations of institutional discrimination within the curriculum itself and expanded to cover racial discrimination, implicit biases, and appropriate community engagement.

Establish independent accountability mechanisms. Accountability for institutional racism in law enforcement is difficult. Police have a hard time investigating themselves. Prosecutors are also not well situated because they have to cooperate and work with police every day to do their job. Independent mechanisms to investigate and prosecute cases of police violence would be more effective at ensuring accountability.

In 2016, Campaign Zero reported “of at least 4,024 people killed by police since 2013 [in the United States], only 85 of these cases have led to an officer being charged with a crime. Only 6 cases have led to convictions – fewer than 0.2% of known police killings.” Grand juries seem to be largely ineffective at indicting officers for using deadly force and the current system has not provided accountability.

Some U.S. states have taken steps to promote independent and transparent investigations. For instance, California has banned the use of grand juries in police violence cases. But the move for transparent and independent investigations does not end there—prosecutors still retain much control over filing a case. More mechanisms for independent and transparent investigations should be established to increase accountability.

CERD confronted this challenge in its review of Germany. It suggested that Germany should create an independent complaints mechanism to investigate acts of racial discrimination by law enforcement and encouraged Germany to take necessary action against law enforcement who were responsible for discriminatory acts in the NSU investigation. 

Now more than ever, it is important for Germany and the United States to make progress on these recommendations. Both countries have been exposed to highly toxic and divisive rhetoric that promotes xenophobia and intolerance. Both countries have seen a spike in hate crimes that is connected to the underlying political and social landscape. The increased overt racial and xenophobic sentiment will allow institutional discrimination to fester, with severe consequences for vulnerable individuals and communities.