Enforcing the Law Enforcement Laws
Society looks to police forces for protection and safety, but are these organizations protectors or predators? The spectrum of armed groups in society ranges from somewhat disorganized criminal bands through vigilante posses and the Ku Klux Klan to police forces to secret and political police. The question is what, if anything, distinguishes the police from criminals and klansmen on one hand and Gestapo and Chekhists on the other.
The rule of law plays a major role in controlling the spectrum of violence. First, it limits those who can use violence only to state-sanctioned actors. Armed robbers cannot legally shoot their victims and the Klan cannot form lynch mobs. Criminal gangs face punishment if they settle their quarrels with machine guns.
On the other end of the spectrum, the rule of law limits and controls the process and procedures of violence. Without these controls, including the one that the users act visibly, police agencies become Gestapo-like secret police. Lack of both controls and procedures leads to midnight arrests, no-knock raids, secret and coercive interrogations, and ultimately to Gulags.
Limits on the targets of violence are also necessary. One of the major flaws in American law enforcement has been to allow the police themselves to redefine their role from “serve and protect” to “get the bad guys”. The rule of law limits the application of violence to those who have broken the law or who are reasonably perceived as posing an immediate and realistic threat to cause harm. In those cases only that measured violence necessary to carry out those limited ends is permissible. Viewing law enforcement as “getting the bad guys” reduces the police to just another street gang with badges (and one should wonder why they insist on covering their badges and wearing masks while executing that thuggish behavior).
While enforcement of the laws against murder, robbery, and rioting are important, strong enforcement of the laws governing law enforcement itself are even more important. Insisting that the organs of the state scrupulously obey the laws themselves is the most important bulwark against the totalitarian state.
How do American police and judicial organs stack up? The record is not very good. Some examples tell the story. First, a disclaimer is needed. Most police officers, prosecutors, and judges do their jobs in a professional manner, but most is not enough. The old adage is that one rotten apple can spoil the barrel – and just a few outlaw cops are enough to destroy public trust in the system. Commercial air travel now averages less than one fatality for every four million flights, but many are still afraid to fly. Law enforcement will never be as exactingly correct as air travel, but it should not fall as far short as it does.
The following is a short catalog of some of the major ways in which law enforcers violate the laws of law enforcement:
Profiling: Anyone who has followed the history of the drug laws knows that who one is is a better predictor of arrest than is what one does. The rate of arrest and prosecution of young black males is far above their proportion in the population in general or of drug users. Around a third of black males are currently under judicial supervision – bail, probation, incarceration, or parole. An Hispanic federal district judge in South Texas used to tell of the numerous times he was stopped while driving by the police (and when he identified himself, the “reason” for thee stop quickly vanished). In the words of the old Big Bill Broonzy song, “If you’re white, alright; if you’re brown, stick around; but if you’re black, get back.” In today’s terrorism hysteria, mid-eastern stereotypical characteristics can also land one in the hands of the police.
Testilying: Police officers lie under oath; the lie on the witness stand and in oaths supporting search warrant applications. Even though these lies are felonious, they are common enough that courthouse jargon has invented a word for the act: testilying. Since many criminal cases boil down to a “he said; he said” contest between the officer and the defendant and since juries are strongly biased in favor of believing the cop, testilying most often results in getting the “bad guy”. Many prosecutors know that the cop is lying, but they still adduce the testimony, getting a conviction for their records. They are suborning perjury, itself a felony.
One of the most insidious effects of testilying is that it is the bedrock that allows the cop to carry out most of the other tactics discussed.
Snitches: My career in the law – both practicing and teaching – extends only over forty years and three states, so I haven’t seen everything. So when I say that I have never seen a jailhouse snitch tell the truth, I’m not stating a universal; but the evidence is pretty damn’ strong. The problem is that snitches (“informants”, to use the mealy-mouthed euphemism) are paid for their testimony – and a policeman or prosecutor is not going to pay for exculpatory evidence. Snitches are paid either in cash, usually from forfeited assets, or leniency in pleas or reduced sentences. Some DEA professional snitches have averaged six-figure incomes over periods of several years, and one Mafia killer was released into the witness protection program in return for testimony against his boss. He was later convicted for his violent activities in a drug gang organized while he was a protected witness. The most notorious case was that of Whitey Bolger, a Boston mob boss with over twenty killings to his record, who was protected from both state and federal prosecution for seventeen years by the FBI. Snitches are used primarily in organized crime and drug cases, in which neither complaining witnesses nor physical evidence are available.
Coerced Confessions: In the 1990s, five teen-aged (one was still a juvenile) minority boys were convicted of the rape and murder of a jogger in Central Park (the case is the subject of a new book, The Central Park Five). They were convicted on almost no evidence but their convictions. Unfortunately, they had not done the crime. Many years later the true murder was found and his guilt confirmed by DNA samples found on the corpse. The boys were exonerated, but the question remained: why did they confess? The sad story is that this kind of coerced false confession is wide-spread and the police have developed many techniques that walk right up to – and sometimes cross – the line of physical torture. The goal of the cop, whose performance is based on arrests and not on convictions, is to clear the case, not to find the actual criminal.
As depressing as this catalog is, it could be much longer. It has not mentioned throw-down evidence, contempt of cop, or “You may beat the rap, but you can’t beat the ride” among many other defects in the ways the laws ar enforced. The important point is that all of these behaviors involve the breaking of the law by the law enforcers.
And they are almost never prosecuted. Convictions are regularly and routinely overturned because of these kinds of law enforcement behavior, but prosecution, let alone convictions of prosecutors or police for perjury or subornation of perjury, civil rights violations, or many other crimes are so rare as to be invisible.
It’s time to call the system to task. Citizens must realize that a thug with a badge is just a thug and take responsibility for insisting that elected officials oversee the administration of justice as vigorously as they do other violations of peoples’ rights and persons.
And in the meantime, make sure a recorder (preferably video) is running anytime you confront a cop.
Required Reading (necessary for any concerned citizen):
Alexander, Michelle, The New Jim Crow
Schenk, Barry, Peter Neufeld, and Jim Dwyer, Actual Innocence