Author: John Marek

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Opinion Viewpoint

Hands Off CLERB

Councilmen Kemp Conrad and Worth Morgan are attempting to disband the Civilian Law Enforcement Review Board (CLERB) in favor of a City Council Law Enforcement Review Board. CLERB, which existed in the 1990s and was revamped around 2014, has struggled to be what it was intended to be, due to Police Director Michael Rallings refusing to accept any of its recommendations.  

John Marek

On May 10, 2018, CLERB unanimously agreed to send a letter to Mayor Jim Strickland and the Memphis City Council, making suggestions on how the board could be more effective.

Unfortunately, Director Rallings chose to try to render the board ineffective by rejecting all of its recommendations, which were to implement one of the following: 1) The police director should be reasonable and at least meet the board in the middle on its decisions (compromise); 2) a new police director who would work with the CLERB; 3) a new ordinance that would give CLERB binding decision-making power; or 4) an amendment to the current ordinance, which gives appellate power to the mayor over the police director’s decisions.

If any of the four CLERB suggestions had been accepted by the council and/or Mayor Strickland, CLERB would have been able to function the way it was intended. But it was not to be.

The police-involved shooting incident in Raleigh last summer is a prime example of why CLERB is so important. We do not want to be the next Ferguson. While gated neighborhoods in Memphis may not appreciate the importance of CLERB, lower-income and impoverished areas of Memphis understand the trust issue that exists between the police and some of our city’s residents. CLERB was intended to be the group that gives citizens a fair hearing, and, if implemented properly, it would help our community build trust between civilians and the local police. 

Without CLERB, we are solely dependent on MPD Internal Affairs to investigate complaints by civilians about police. MPD Internal Affairs is itself a conflict of interest; self-regulation does not work. Instead of taking advice from CLERB’s 2018 letter, the mayor has taken no action to address the issue. And now, certain council members are attempting to eliminate the board’s independence completely. 

The mayor’s lack of action has been a disappointment. As a councilman, Strickland was a strong voice in favor of the CLERB ordinance. He understood the issue well, and he and Councilman Alan Crone were instrumental in passing the legislation. As mayor, Strickland has preferred to avoid the issue, and he has not done anything to address any problems identified by the board. 

The first and second suggestions from CLERB can only be carried out by the mayor and through his influence. He appoints the police director, and the police director answers to him. Though Strickland was excellent at balancing Midtown and East Memphis concerns as a councilman, he seems to go a lot more with his East Memphis constituency as mayor. Hopefully, he will cater less to his donor base during his current term since he will be term-limited in 2023. 

One interesting point from local activist Paul Garner: Does the city council really want to have the responsibilities of CLERB? Politically, it could be dangerous, as they will be judged by supporters of both sides of any issue the council publicly makes decisions about regarding complaints against MPD.

Garner saw silver linings in the passage of the council-led review board ordinance: 1) When a case’s facts are clearly in the citizen complainant’s favor, will Rallings continue to ignore decisions when they come from the council? 2) If the council actually exercises its subpoena power to require officers to testify, will they show up? (Officers have ignored requests to do so by CLERB.) 3) Inasmuch as these meetings would be required to be public, does the city council want the additional media coverage created by the council’s openly hearing complaints against MPD?

One major consequence of passing CLERB on to the city council could be that its members would be tempted to eliminate any type of review board after passage of the initial transforming legislation. Another concern is that documents that should be made public would be deemed “confidential” by the council. 

There are a lot of negatives in switching CLERB to a council-led board, but could there be a truckload of silver linings to follow? I hope we do not have to find out.

I hope the current council will think this approach through and allow the newly elected council to make the final decision. Lame ducks should not be voting on the proposed ordinance.

And Mayor Strickland, please reconsider the suggestions from the 2018 letter from CLERB.

Lawyer/activist John Marek, a recent candidate for the Memphis City Council, was a charter member of CLERB and instrumental in its creation.

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Opinion Viewpoint

Thoughts About How to Win Memphis Council District 5

CREDIT: Justin Fox Burks

Some readers may recall that, in 2015, I ran unsuccessfully for the Memphis City Council as an avowed progressive in District 5. Since then, I have heard several people comment that District 5 was won by a conservative because three progressive candidates ran and split the vote. Now that the 2019 city elections are on the horizon, I would like to dispel that myth and look at what is potentially different for the district in 2019.

Justin Fox Burks

John Marek

Even if only one progressive had run in 2015, that one progressive would have lost. Worth Morgan, the current councilman and eventual winner, had $300,000 in his campaign war chest, and the votes of conservatives Dan Springer and Morgan combined were 55 percent of the total vote, as compared to 42 percent of the combined percentages of Mary Wilder, Chooch Pickard, and, me, all progressives in good standing.

Democratic turnout was lower than expected that year. A lot of working-class and middle-class voters were upset over the city council’s votes on pension retrenchment, and they evidently did not see any alternative that excited them enough to show up to the polls. Meanwhile, conservatives came out strong for mayoral candidate Jim Strickland.

Strickland and I both happened to be at one of the polling sites on Election Day, and I said to him: “Based on who has voted early and the seemingly low turnout today, I believe what is going to help you is going to hurt me.”

Having seen the early voting data, I also mentioned to Mary Wilder my belief that it would be Morgan versus Springer in the runoff, because of the high conservative turnout.

The fact is, District 5 is not exactly a blue district. Yes, it has Midtown and Binghampton, but it also contains most of East Memphis. In essence, Midtown progressives saw all of their districts either transformed or moved elsewhere in Tennessee in post-2010 redistricting. Congressman Steve Cohen’s former state Senate district was affected, as were the state House seats formerly occupied by Jeanne Richardson and Mike Kernell.

I would consider the current council District 5 to be purple in a high-turnout scenario and red in a low-turnout scenario. It’s regrettable that we don’t hold all of our local general elections on the same day we hold our state and federal general elections. We would save money thereby, and simultaneously reap a higher turnout of progressives.

In any case, in 2015, any progressive who might have made the runoff would have lost handily. I thought I could prevail on the strength of personally knocking on some 6,500 doors in a four-month period, while my supporters were doing likewise. Hindsight tells me I was over-optimistic.

Had any of us progressives made that runoff, the older and wealthier white vote would have shown up in higher numbers, and no amount of knocking on doors would have prevailed over the tidal wave of money committed to the conservative contender.

Instant runoff voting (IRV), which should already have been implemented after the 2008 referendum approving it, could well transform the electoral situation if it is employed in 2019. Runoffs have allowed the city’s economic elite to control a council that should by all rights have a majority voted in by working-class voters and people of color. That is why the IRV issue mattered enough for me to volunteer on its behalf in the referenda of both 2008 and 2018.

Looking ahead to 2019 voting, I find myself wondering whether or not the blue-wave turnouts we saw last year will continue to prevail in non-federal elections. If  IRV is properly implemented, a progressive could win District 5. That result would not be guaranteed, although a progressive with the ability to at least partially self-finance would, in my judgment, have a fair chance of  success.

I have heard rumors about one potential progressive candidate who would fit that profile, and that person would benefit from the absence of a runoff via IRV, as well as not having to worry about the divisive effects of multiple progressive candidates, as in 2015.  

Our current council members — and the status quo types behind them — thought it was a good idea in 2018 to try to undo decisions already made by voters in 2008, and they had the temerity to spend $40,000 of our taxpayer money to campaign for such a result in last fall’s referendums.

I would just say this: If you are a progressive prepared to run hard and govern well, please announce your intentions soon, because your city needs you.

John Marek is a lawyer, activist, and
occasional candidate for various offices.

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Opinion Viewpoint

Making the case for instant runoff voting.

In 2008, 71 percent of Memphis voters agreed by referendum to rid ourselves of expensive low-turnout runoff elections through instant runoff voting (IRV). If implemented, this would save taxpayers $250,000 a year, and it would end run-off elections with as much as an 85 percent turnout drop-off from the general election.

Instant runoff voting allows voters to rank candidates in order of preference as opposed to only being able to vote for one candidate. Once the votes are tallied, if no candidate has a majority, the candidate with the fewest votes is eliminated. The votes of the eliminated candidate would then be transferred to those citizens’ second choice for the seat. The votes are then re-tallied, and this process continues until a candidate has a majority of the votes, hence no need for the costly and mostly ignored runoff.

IRV has been implemented in 11 cities. Where IRV has been used, it has resulted in the election of more minority and female candidates—but only candidates supported by a majority of a district’s voters. It has also led to more positive campaigning. If you’re an IRV candidate, you want to be the first choice of your base and the second choice of your rival’s base. Thus, you don’t want to do attack-ad, mudslinging campaigns. As a former council candidate myself, I can tell you that our city’s elections would benefit from candidates having to not only garner their own base, but also get along well with their opposition.

IRV also increases opportunities for first-time, lesser-funded, lesser-known candidates. You don’t have to worry about “throwing away your vote” on a favorite underdog; you can rank the underdog first, and a “safer,” more established candidate second.

Why was the will of Memphis voters ignored until possibly now? Election Commissioners and others on the state level claimed that the “touch-screen” voting machines were not capable of allowing instant runoff voting, even though that was not actually the case. Recently hired county election administrator Linda Phillip has recognized IRV can be done with our current machines, and she plans to implement IRV in 2019 for the seven single-member-district City Council races.

Now that the election commission has become part of the solution instead of part of the problem, incumbents worried about how IRV will affect the status quo are attempting to put their concerns in front of the concerns of Memphis voters by forcing an already debated and decided issue back onto the ballot. Councilman Edmund Ford Jr. and other elected officials are attempting to end IRV before voters even get a chance to use the method that they overwhelmingly supported in 2008.

Well-funded interest groups contribute heavily to candidates, and these groups are able to buy local elections for much cheaper than they are able to buy state and federal seats because of the low turnout. It should come as no surprise that workers’ rights and labor interests have faded in influence over the past 40 years. While much attention has been given to the buying of elections on the state and federal level, it is rarely discussed on the local level. Special interests like Wall Street don’t stop at Congress; they go after local government control as well.

The Memphis City Council really has no business interfering with a process already chosen by the voters in 2008, and it is an attack on democracy and Memphians’ rights that IRV was not available during the 2011 or 2015 elections. Let us come together and demand that IRV be implemented in 2019.

In the wake of Citizens United v. FEC and numerous restrictive voter ID laws that were passed across the country, elections are being bought and votes are being suppressed. The affront to IRV is no different except for the fact that we can actually do something about it since it is a local issue. IRV provides a more democratic system that will more truly represent the will of our city’s voters at a much cheaper rate.

For more information, please visit saveirvmemphis.com. Please email the entire council at IRV@saveirvmemphis.com, and ask them to respect the will of the voters and vote no on repeal.

John Marek is is a Memphis attorney, local activist, and former campaign manager for Congressman Steve Cohen.

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Opinion Viewpoint

Shelby County Officials Promote Marijuana Myths

At least temporarily, the Shelby County Commission put itself on the wrong side of history last week when it recorded a vote of 4-7 on the first of three readings of an ordinance to partially decriminalize cannabis. While the resulting vote was different from a positive vote from the Memphis City Council on a similar ordinance, the amount of misinformation on display from opponents during the debate was not. 

Back in the 1930s, when “reefer madness” began, misinformation about cannabis was easy to spread because there was little research, and the public didn’t have access to information that we have today. Now, there is really no excuse for public officials to make blatantly false statements. 

During the council’s debate, Police Director Michael Rallings made demonstrably erroneous statements on everything from driving risks to the much-repeated and much-debunked gateway drug argument to a wildly overstated estimate of how many joints could be rolled out of a half-ounce of marijuana (though, admittedly, the thought of MPD officers sitting around a table rolling doobies is hilarious). 

On the issue of driving risks, Mark A. R. Kleiman, an NYU professor specializing in drug and criminal policy issues, said driving while under the influence of cannabis compares to having a noisy child in the back seat, making one perhaps twice as likely to have an accident. As a point of comparison, Kleiman found that using a hands-free cell phone while driving makes one four times more likely to have an accident. 

U.S. Attorney General Loretta Lynch has also disputed the gateway drug theory as applied to pot. In arguing for the potentially addictive nature of prescription drugs, which might in her estimation lead on to dangerous opioids such as heroin, she was dismissive of equivalent dangers from marijuana: “It’s not like we’re seeing marijuana as a specific gateway.”  

Addressing the issue of marijuana decriminalization, Kim Gerecke, chair of the neuroscience program at Rhodes College, is in agreement with that thesis. As she puts it, “Marijuana has a relatively low addiction rate of about 9 percent. In contrast, the addiction rate of alcohol is 15 percent, and nicotine is around 32 percent. Importantly, addiction rates to opioids, including prescription painkillers, are about 25 percent.”

Pointing out that there has never been evidence of a death directly attributable to a marijuana overdose, Gerecke says, “research has shown overwhelmingly that marijuana has an incredibly low toxicity, especially when compared with the over half a million Americans who die every year due to the toxic effects of alcohol, prescription opioids, and nicotine.”

Gerecke goes so far as to suggest that decriminalization may actually have a deterrent effect on use of dangerous drugs: “It’s important to note here that recent research in Colorado and other states in which cannabis is decriminalized, or even legalized, has shown that use of other illicit drugs has declined.”

In Tennessee, even the amount of marijuana used as a standard to impose legal penalties may be overstated. The state deems that possession of 14 grams is the amount at which a misdemeanor occurs, whereas most states set the limit at a range from an ounce (28 grams) to 30 grams.

During the county commission’s debate, Commissioner Heidi Shafer made the claim that marijuana is extremely carcinogenic. However, in the Harm Reduction Journal, which publishes research focusing on the prevalent patterns of psychoactive drug use and the public policies meant to control them, Robert Melamede, a physician, writes that the cells of the lungs are lined with nicotine receptors but do not appear to contain receptors for THC, which may explain why marijuana use has not, in fact, been linked to lung cancer. 

As an indication of just how wildly misleading the local case against decriminalization has been, Chief Inspector Mark Kellerhall of the Sheriff’s Department stated to the commission that a half ounce could have up to a $3,000 street value. Aside from its having no discernible relation to the argument, that misstatement is so ridiculously far from the truth that it should not even have been published as news or allowed to go unchallenged at the commission meeting. 

My plea to all public figures, regardless of their viewpoint is: Please just do the research; merely repeating hearsay legends is doing a disservice to the public.

Memphis lawyer John Marek is president of the local branch of NORML (the National Organization for the Reform of Marijuana Laws).