An investigation of Eddie Johnson’s record as a supervisor in the Chicago Police Department before he was named superintendent uncovered what it calls a pattern of whitewashing questionable behavior by police officers, raising questions about the future of police reform in Chicago.
Chicago Police Superintendent Eddie Johnson’s history in the department raises troubling questions about the future of police reform in Chicago, The Interceptreports in the seventh in its Chicago Police Files series on alleged “corruption, racism and violence” in the Chicago Police Department, produced in partnership with the Invisible Institute. The publication’s investigation of Johnson’s record uncovered what it calls a pattern of whitewashing questionable behavior by police officers, including the shooting of 22-year-old Rekia Boyd, an unarmed woman hanging out in a park whose 2012 death later cost the city a $4.5 million settlement with the victim’s family.
Drawing on documents obtained by the Invisible Institute via litigation and included in the Citizens Police Data Project, the investigation shows that Johnson repeatedly approved police shootings or ignored allegations of excessive force over his years as a supervisor, consistently finding that they did not qualify as misconduct. In a decade as a senior CPD supervisor, Johnson personally investigated or commanded the officers responsible for six controversial shootings that left five people dead — all young African-Americans — and cost Chicago more than $13 million in misconduct payments. Johnson’s tenure as commander of Chicago’s 6th Police District from 2008 to 2011 was marred by serious allegations of misconduct by an elite tactical squad led by a scandal-plagued lieutenant named Glenn Evans. During six months in 2010, members of the roughly 45-person team participated in the fatal shootings of three men, all unarmed or fleeing. Another of Johnson’s officers was credibly accused of killing a teenager and planting a gun on his body. After his promotion to deputy chief in 2011, Johnson reviewed and approved more disputed shootings. Neither Johnson nor Mayor Rahm Emanuel has ever acknowledged the superintendent’s involvement in some of the department’s most notorious recent police shootings, The Intercept wrote.
The number of U.S. residents who had some form of encounter with police dropped from 26 percent to 21 percent between 2011-2015, according to a Bureau of Justice Statistics study. But criminologist Rick Rosenfeld says the data doesn’t necessarily support the so-called “Ferguson Effect” theory that police are withdrawing services in response to anti-cop protests.
Whites are more likely than African-Americans to experience some form of contact with law enforcement, but when police initiate the encounter, blacks are more likely to experience “the threat or use of physical force,” according to the Bureau of Justice Statistics (BJS).
The BJS study, based on four years of data between 2011-2015, found that the percentage of U.S. residents over 16 who had some form of police encounter had slipped from 26 percent to 21 percent—or from nearly 63 million people to 53.5 million people.
“The number of persons who had contact that was police-initiated fell by eight million, and the number of persons who initiated contact with police dropped by more than nine million people,” the study said.
“We don’t know whether contacts fell after Ferguson and ensuing events or had been decreasing since 2011,” said criminologist Rick Rosenfeld, Founders Professor at the University of Missouri-St.Louis, and a leading national authority on crime control policy.
“Annual data on police contacts are needed to show any relationship with the controversy over police violence.”
Rosenfeld noted that arrest rates had also dropped in 2015, but “they were declining well before the Ferguson incident.”
The BJS study found that whites (23 percent) were slightly more likely than blacks (20 percent) or Hispanics (17 percent) to have had contact with police during 2015.
But the figures also showed that blacks and Hispanics were more than twice as likely (5.2 per cent and 5.1 percent respectively) to experience the threat or use of physical force by cops than whites (2.4 percent).
About two percent of those who experienced police contact experienced a nonfatal threat or use of force by law enforcement, ranging from being pushed, hit or kicked to having a gun pointed at them, and a majority (84 percent) found it “excessive,” the study said.
The most common reason for police-initiated contact (8.6 percent) was a traffic stop, according to the study—most often for speeding.
According to the findings, females were more likely to initiate contact with police than males.
In another notable finding, residents of cities with a population of at least one million were less likely to have contact with police than residents of cities or towns with a population fewer than 100,000.
The report was written by BJS statisticians Elizabeth Davis and Anthony Whyde, and former BJS statistician Lynn Langdon, Ph.D.
Prosecutors dropped the charges after finishing their review of arrests involving Zachary Wester, a former Jackson County deputy accused of planting drugs on motorists. The charges involved everything from traffic offenses to felonies, including possession of methamphetamine. Wester was fired Sept. 10.
Florida prosecutors dropped charges in 119 cases after finishing their review of arrests involving Zachary Wester, a former Jackson County deputy accused of planting drugs on motorists, the Tallahassee Democrat reports. The charges involved everything from traffic offenses to felonies, including possession of methamphetamine and other controlled substances. Wester was fired Sept. 10 and remains under investigation by the Florida Department of Law Enforcement. On Tuesday alone, some 49 cases were dismissed by Judge Wayne Mercer. The state began dismissing cases on Sept. 13 that either were initiated by Wester or heavily involved him.
Derek Blount, an assistant public defender, asked Mercer to set aside pleas and vacate sentences for about 40 defendants, some of whom had more than one arrest involving Wester. The explosive charges against Wester came to light last week in reporting by the Democrat. In addition to the dropped charges, Judge Christopher Patterson ordered a number of state inmates — at least five as of last week — to be released from correctional facilities. Last week, prosecutor Glenn Hess announced his office was reviewing more than 250 cases involving Wester. He “lost confidence” in Wester after watching body camera footage of Wester arresting a woman this year for possession of meth. In the video, Wester can be seen with a plastic baggie in his hand before conducting his search of the woman’s pickup truck. Prosecutors dropped drug charges against the woman last week.
Cops have been known to manipulate body camera evidence to support their version of fatal encounters with civilians. That’s why video footage should be closely examined through courtroom questioning, argue two researchers.
Police officer statements captured through body camera footage should be permissible in court as evidence against a criminal defendant only if the officer making the statements testifies in court, argues a forthcoming article in the Fordham Law Review
The authors of the article, William and Mary Law School Professor Jeffrey Bellin and 13th Judicial Circuit of Virginia Law Clerk Shevarma Pemberton, made the recommendation as part of an analysis of preexisting laws governing hearsay evidence and the rising widespread use of police body cameras.
Police body cams typically produce audio and video recordings of police officer actions, observations and interactions with citizens, and while they are generally viewed as checks on police misconduct, they are also a tool for officers to collect evidence against citizens who later become defendants in criminal trials, the researchers say.
Since officers know the footage will be used as evidence, they could control and manipulate evidence during police-civilian interactions in a manner that incriminates civilians.
One way they can do so is through their oral statements. For example, an officer may shout “He is reaching for his gun,” or “He just threw something in the bushes,” when in fact no such actions occurred or at least aren’t corroborated in the video footage.
For that, they should testify and face cross-examination, the researchers say.
The study provides a list of recent events the authors say back up their concern. In Baltimore, police were accused of reenacting drug discoveries for their body cameras. Officers involved in shooting Stephon Clark muted their body camera audio shortly after the shooting. During the 2016 shooting of Alton Sterling, both officers’ body cameras were “dislodged.”
The researchers also found that 70 percent of officers violate body camera policies.
“This is particularly important because the footage produced by police body cameras will much more commonly be used to prosecute citizens than to document their abuse at the hands of police,” the authors wrote.
“This danger becomes particularly significant if police body camera statements are introduced at trial without the live testimony of the authoring officer. Such statements will be admitted with a veneer of reliability despite never having been subjected to an oath, or the “crucible of cross-examination.”
The authors proposed that officers must testify that they cannot fully and accurately recall the incident and vouch for the accuracy of the out-of-court statements. Furthermore, the oral statements in the video must exhibit “excited utterances,” as they are spontaneous and less likely to engage in “conscious fabrication than the reflective mind.”
The authors argued that the media and scholars of body camera footage coverage focused on holding police accountable for unlawful shootings and other uses of excessive force but have ignored examining the extent to which the audio track—specifically statements made in the audio track in body cam footage should be admissible against a defendant in a criminal prosecution.
The 18 vacated convictions announced Monday bring to 42 the total number of cases overturned that involved Sgt. Ronald Watts. All of new cases vacated were connected to convictions after narcotics arrests.
The work of a “corrupt” police sergeant is still being undone in Chicago as 18 more wrongful convictions tied to his cases were overturned, ABC News reports. The 18 vacated convictions announced Monday bring to 42 the total number of cases overturned that involved Sgt. Ronald Watts. All of new cases vacated were connected to convictions following narcotics arrests. “I’m just happy that, you know, I’m able to move forward with my life,” said Martez Wise, who spent four years in jail for a narcotics conviction after an arrest involving Watts. Cook County State’s Attorney Kim Foxx said her office wants all convictions in the area to be “based on fairness and the utmost integrity.”
“We could not stand behind of the integrity of these convictions because of the behavior of Sgt. Watts and his crew,” Foxx said. “What we know what was happening with Sgt. Watts and the way he ran his operation was that there were many men and women who fell victim to his corrupt ways.” Watts was convicted in 2012 and sentenced to 22 months in prison after he was caught stealing money from an FBI informant in a sting. The individuals from the latest batch of overturned convictions were given sentences ranging from probation to four years in prison.
America’s crusade against alcohol ended over seven decades ago with the 21st Amendment. But Supreme Court decisions aimed at curbing police misbehavior during Prohibition—by excluding evidence obtained unlawfully—have complicated efforts to hold law enforcement accountable for its actions today, according to a new book by a Pennsylvania law professor.
Prohibition in America lasted 13 years—until 1933, when President Franklin D. Roosevelt signed a “beer bill” as one of his first acts in office. The Twenty-First Amendment—the only constitutional amendment ever to reverse an earlier amendment—went into effect by the end of that year.
But the collateral damage of Prohibition still reverberates through the criminal justice system.
Much has been made of the gangland violence that punctuated Prohibition. Mobsters like Al Capone, who made millions during Prohibition, would stop at nothing to corner the bootlegging market.
However, that was only one facet of the violence.
At times, the police were worse than the mob, and the subsequent efforts to curb Prohibition-era police misconduct have also left a lasting impact on the search for accuracy in prosecutions and limits on excessive force by police officers.
His conclusion is especially worth noting as the nation grapples with multiple cases of police misconduct and the failures to hold law enforcement accountable
Oliver quoted the 1931 The Wickersham Report, formally titled “Report on the Enforcement of the Prohibition Laws in the United States,” which blasted law enforcement during the Prohibition era,
Among its key conclusions:
Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizures … started a current of adverse opinion.
Police mugshot of gangland leader Al Capone. Courtesy Peter K. Levy via Flickr
Prohibition created “enormous” opportunities for police corruption, Oliver wrote.
While the potential benefit to crooked cops was obvious, over-zealous “honest” officers often took advantage of the zealous enforcement climate created by Prohibition to violate individuals’ privacy, destroy property, or engage in physical violence—all in the name of stamping out alcohol use.
As Oliver points out, police behavior during this era shifted the focus from procedures to ensure accurate criminal trials to preventing police misconduct. The result was the exclusionary rule.
Thirteen days after the Volstead Act made it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court decided Silverthorne Lumbar Co. v. United States. The Court found that the Fourth Amendment prohibits the government from introducing evidence gathered as the result of an unlawful seizure.
The exclusionary rule was not restricted to illegal searches. At the time, police were practitioners of the “third degree”—violence-induced confessions. The term is better known as torture.
Oliver examines the rigidity of a rule that excludes reliable evidence of criminal conduct because of the manner in which it was obtained or, as Justice Cardoza famously said, the result of the watchman’s “blunder.”
By 1939, not only was illegally obtained evidence being excluded but any evidence discovered as a result of the illegally obtained evidence was excluded as well. The fruit of the poisonous tree, as it became known, was excluded regardless of its reliability.
About the same time technology began to get in the way of the U.S. Constitution.
As telephones became more and more useful in criminal enterprises the High Court was forced to consider the privacy rights of individuals. Oliver meticulously maps out a history of the wiretap, highlighting that the Court’s first foray into wiretapping was a failure—a precursor to the modern Court’s struggle with rapidly evolving technology.
In Olmstead v United States, Chief Justice William Howard Taft concluded that the Fourth Amendment only protected tangible things—persons, papers, and effects. Since the police eavesdropped on telephone calls while clinging to a telephone pole outside the house, and not in the house, there was no intrusion and no violation of the Fourth Amendment.
According to Oliver, wiretapping during Prohibition “created such a backlash that communication over wires became more protected than information in sealed envelopes or effects in one’s home.”
So how does Prohibition affect us today? Oliver examines, with clarity and finesse, the Warren Court’s landmark decisions in Mapp v Ohio (exclusionary rule); Terry v Ohio (stop and frisk); and Miranda v Arizona (right to counsel and to be free of interrogation).
Oliver wrote that “The Supreme Court’s cases are moving toward eliminating the exclusionary rule.”
Certainly Oliver’s examination of the case law would support that conclusion, but ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.
As Oliver writes, the late Justice Antonin Scalia suggested in Hudson v Michigan that the exclusionary rule is obsolete because of an “increasing professionalism of police forces, including a new emphasis on police discipline.”
That increase in professionalism is because of the exclusionary rule— not a reason to abolish it.
Oliver’s work is thought-provoking. Accuracy should be the goal of any system of justice, but protecting the public from unlawful police practices—including excessive force—is also a laudable goal.
Matthew T. Mangino, a regular contributor to The Crime Report, served as an elected District Attorney in Pennsylvania and on the state’s Board of Probation and Parole. He is now of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
A draft consent decree aimed at curbing abuse of force and racial bias in the Chicago police department is now circulating for comment. But it may not solve the underlying issues, writes a Boston attorney.
A draft consent decree aimed at the Chicago Police Department’s history of abuse of force and racial bias has been negotiated by the city and the Illinois Attorney General for presentation to a federal judge. It has been circulating for comment.
Kalven sees promise in this consent decree, but he communicates a deep foreboding.
The draft decree marks the culmination of a grueling period of engagement for both community and official stakeholders. It represents a lot of hard and disciplined work, triggered by an appalling accumulation of wrongful convictions, officer-involved shootings, and data-heavy studies revealing racially biased impacts, all mixed with a concurrent blindness to officer wellness. And it addresses all of those issues.
But you can’t read Kalven’s essay without thinking of William Faulkner’s observation that “The past is never dead. It isn’t even past.”
The Chicago police union has been working without a contract for over a year. The union’s agreement to several of the draft consent decree’s most productive provisions in collective bargaining will be indispensable.
However, the union leadership is framing both the Van Dyke murder trial and the consent decree process as components of an ideologically driven attempt to handcuff the police: as a War on Police.
Homicide rates are high; clearance rates are startlingly low.
As Kalven sees it, these streams are about to meet and cascade. It is clear that the torrent they generate will have tremendous force; what will be swept up in its currents can’t yet be predicted.
Will civil society and government voices sustain the public arguments necessary to realize the historic opportunity for fundamental change at hand? Or will the blood sport of the mayor’s race, the media circus of the Van Dyke trial, the complexity of the consent decree, and the intransigence of FOP yield a bruising, confusing public discourse that ultimately leaves Chicagoans more polarized, entrenched, and demoralized than they currently are?
In other words, could all of this pain and hard work come to nothing in a context where “nothing” actually will mean “much worse than nothing”?
It seems a little crazy for an outsider to offer advice about this, but I think there’s a precautionary step worth taking: not an overnight solution to decades of earned distrust; just a small step in the right direction.
That step is the careful, explicit, and public disentangling—right now, at the beginning—of two distinct versions of accountability.
One version of accountability looks primarily to the past: it reviews the performance of individuals, and assigns blame and punishment for misconduct.
But there’s another kind of accountability: one that looks to the future, and reviews the entire event, and asks not only “Who?” but “How?” and “Why? “
Most importantly, it asks those questions to answer another question: “What can be done to avoid a repetition?” This is the view of accountability that now characterizes aviation and medical patient safety efforts.
These two forms of accountability are complementary, not competing.
We need both kinds of accountability; neither, independently, will bring us public safety.
But if you try silently to mash them together you will get a “Discipline-Lite” compromise that doesn’t—and shouldn’t—satisfy anyone.
The Chicago draft consent decree addresses a wide range of issues in productive ways. It is past time, for example, to agree to create a robust crisis intervention capacity for encounters with the mentally ill, to focus on officer wellness, and to articulate clear use of force policies that can form a basis for training.
But today’s Chicago has inherited an environment where wrongful convictions multiply, citizens are shot and killed by police, perjury is rampant, and dragnet stops and frisks demoralize neighborhoods, but where it seems no one is ever disciplined or punished.
So, the draft consent decree’s lengthy section on “Accountability and Transparency” is essentially about misconduct. (It explicitly announces that it is aimed at “holding public servants accountable when they violate law or policy.” )
The center of gravity of the Chicago criminal justice crisis is located at a point where community rage at the absence of consequences meets law enforcement’s belief that accountability will inevitably come in the form of media-driven community lynch mobs.
But the decades of running battles over establishing some degree of retrospective, performance-centered accountability have obscured a useful fact that an event-based, forward-looking orientation can illuminate.
The fact is, most of the events—police shootings of the mentally ill, fruitless stops and frisks, wrongful convictions that leave the real perpetrators free, officer suicides—that ignite political firestorms are events that no one in Chicago, in any role, or at any rank, or on any side of current debates, wants to see happen again if they can possibly be avoided.
People may feel the damage from these events with different intensity, and be willing to invest varying degrees of effort to avoid them, but they are no one’s positive goal. No one, for example, emerges unharmed from a fatal police shooting, whether the shooting was “within policy” or not.
Recognizing this reality may help the players—activists and officials both—mark out an island of common ground. It would be a place where they can collaborate and do the work of healing the future by correcting the conditions under which people work: a place apart from the divisive struggles over punishment for the past.
Chicago is a big city, and its criminal justice system is not a community of saints. There really are dangerous criminals in the neighborhoods. In every role—policing, defending, prosecuting, judging, community corrections—you can find a handful of creeps. But mostly you will find normal people trying to do their normal jobs as best they can, with the tools provided in the time allowed and with varying degrees of energy and diligence.
Every event, including the ones that involved a creep, also involves all the players in the justice system. It’s important to emphasize that these events are system errors; the creep couldn’t have done it by himself.
Someone hired the creep, trained him, supervised him, monitored his conduct, and missed the red flags. Someone assigned him to his role, provided the information he acted on and the equipment he had available, shaped the culture he worked in, built and sustained its incentives and disincentives.
A prosecutor may have hidden exculpatory evidence, but someone arrested the wrong guy in the first place; many “someones” failed to catch his Brady violation and made it seem like a good idea in the first place.
Even where misconduct, including criminal misconduct, is obvious, it is surrounded and enabled by simple mistakes—by the choices of people who zigged when they should have zagged for reasons that made sense to them at the time and failed to foresee the consequences.
Even when there is a creep to hang, simply hanging the creep is a bad place to stop. There’s still a lot to learn about the environment that will face the next justice worker who comes along.
A process that evaluates that environment, along the lines of the non-blaming, all-stakeholders Sentinel Event reviews that the Bureau of Justice Assistance and the National Institute of Justice are supporting is one that can occur on common ground.
The individual due process concerns that make direct community participation (beyond grand jury service and the voting booth) unwieldy in punitive processes and alarm the Fraternal Order of Police are no barriers in a “forward-looking” effort.
In fact, the all-stakeholders, all-ranks, prospective approach helps to counteract the strong tendency of disciplinary processes to push organizational accountability down to the frontlines. Features of (for example) a patrol officer’s life in equipment, training, assignment, dispatch that would be dismissed as “excuses” in a disciplinary process can be given their full explanatory weight: accounted for and changed.
The situation confronting the next officer can be made safer—for everyone.
Carving out a safe space for the forward-looking reviews of criminal justice events can promote a practice of ongoing collaborative community/government work. The events can be chosen by the participants for their learning potential, not by circumstances for their explosive, front-page power.
The idea here is not a Warren Commission or 9/11 Commission approach to giant crises, but to undertake the hard work of living in the world by learning what we can from low temperature, high frequency events: from “near miss” and “good catch” incidents, from chronic rather than acute pathologies affecting the government/community relationship.
Get everyone to the table, where we can show each other that there are things we desperately want to avoid re-living. We got into this together; together is the only way we’re going to get out.
Whatever the outcome of the looming battles that Kalven describes, we should try to save some space for that work.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. The opinions expressed here are his own. He welcomes readers’ comments.
A University of Texas psychologist surveyed 164 officers about how they view the criminal justice system and how well the public understands the challenges of their job. She found that conservative officers did not suffer performance issues when they were criticized.
In recent years, thanks in no small part to smartphone videos, police departments in Texas and across the nation have faced demands for accountability in the wake of outrageous abuses of authority and force. How does public criticism affect policing?
Shefali Patil, an organizational psychologist at the University of Texas, studies how employees react in their work environment. After a 2017 Pew Research study found that a majority of police officers believe the public doesn’t understand the risks and safety concerns they face, Patil became interested on how police officer job performance is being affected by public criticism.
Patil divides the ways police officers approach crime into liberal and conservative. She says that the liberal approach focuses on rehabilitation and empathy, while the conservative approach focuses on detention. Police officers’ reaction to public criticism depends on their approach to crime, Patil says.
“[Police officers] who are more empathetic expect the public to understand the job. What is happening is they have those expectations and the public is responding with criticism and a lack of public appreciation,” Patil says. “The more conservative, more authoritarian officers don’t expect it. The reason why they have the uniform is because they have duties and responsibilities that other people are not expect to understand.”
Patil surveyed 164 officers about how they view the criminal justice system and how well the public understands the challenges of their job. She had independent experts analyze 794 bodycam videos of the officers carrying out their everyday duties, including jail transports, traffic and DUI stops, transient arrests, car crashes, building searches and house alarm calls.
She found that those who favored a more compassionate approach to justice struggled to be effective when they felt underappreciated. These officers were more likely to score lower on overall performance, competence and use of tactical best practices for officer safety.
Officers who lean conservative — favoring punitive rather than rehabilitative approaches to justice — did not suffer performance issues in the face of the same negative public perceptions. The expert raters found that these officers generally performed as trained.
“Conservative cops believe there should be a divide between themselves and the community,” Patil said, whereas the more empathetic officers may strive for mutual understanding and become frustrated in the effort.
Patil says that police officers experience anxiety and frustration when they feel the public’s narrative of their job is different from their own.
“I think at least from the officer’s perspective, they feel that when an incident happens, the police officer never has a chance. It’s automatically assumed that they did something wrong. Sometimes police officers do do something wrong. They feel that it’s not due process,” Patil says. “I think [officers’] narratives get lost in the debates we are having nationwide.”
Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments welcome.
The cost of police misconduct is increasingly sending cities around the country into debt, generating a burden for taxpayers but profits for investors–and effectively leading to a “financialization of police violence,” according to one advocacy group.
The cost of police misconduct is increasingly sending cities around the country into debt, generating a burden for taxpayers but profits for investors, according to one advocacy group.
The Action Center on Race & the Economy (ACRE) released a report on Tuesday alleging that “police brutality bonds” – bonds taken out by cities to cover police related settlements and judgment costs – create a transfer of wealth from communities to Wall Street. The use of such bonds, ACRE claims, can nearly double the original costs of a settlement.
ACRE’s report examines 12 cities and counties, and includes case studies in Chicago, Cleveland, Los Angeles, Milwaukee, and Lake County, Indiana.
The group estimated that those five cities bonded $837.8 million between 2008 and 2017 and paid $1.03 billion in interest during that time, creating a cost of $1.87 billion for taxpayers. Chicago accounted for the vast majority of each figure, bonding an estimated $709.3 million and paying $1 billion in interest to investors.
The companies loaning to cities included Wells Fargo, Goldman Sachs, and Bank of America, in addition to other firms and smaller regional banks.
ACRE claims police brutality bonds shield officers and their departments from any financial consequences for misconduct, and that the settlements they fund often function as hush money, preventing any real accountability. The group offers three recommendations to end what it terms “the financialization of police violence.”
First, banks and investors should not profit from cities’ borrowing to pay for settlements. Banks should be required to provide no-fee, interest-free loans when lending a city money to cover police-related settlements or judgment costs, and only banks willing to meet this stipulation should be permitted to do business with the city.
Second, cities should oblige police officers to take out individual liability insurance policies to cover the costs of settlements and judgments resulting from misconduct. This policy will create a financial incentive to curb abusive behavior, and will protect taxpayers from footing the bill for violations.
Finally, the report calls for data collection and full transparency regarding officer misconduct: which individuals are causing the settlements and judgments, how they are being held accountable, who is paying for their misconduct, and who profits from these payments.
Activists will hold a press conference at Chicago City Hall on Wednesday, June 27, alongside Alderman Carlos Ramirez-Rosa to address the city’s response to these recommendations.
This summary was prepared by TCR news intern Elena Schwartz. Readers’ comments welcome.
The reflex reaction to cops caught lying on the witness stand is punishment. But if we really want to curb “testilying,” we need to look deeper at the systemic factors that make the practice all too common, says a Boston attorney.
Whenever there is misconduct revealed in a justice system disaster—an assistant district attorney hides evidence, a cop lies in a report, or a forensic technician “dry labs” a test—reformers are transfixed like jack-lit deer by the chance to discipline or prosecute.
The punishment of individuals becomes the center of gravity in discussions of repairing the system.
Catch more of them, and punish more of them; punish those more harshly, and you will have the answer. Accountability means punishment; punishment will mean deterrence.
Our confidence in this approach is a little strange. After all, many reformers spend their days processing an endless parade of defendants who were arrested and charged because they were not deterred despite the threat of punishment.
But you can see the pull of the punishment solution operating even in Joseph Goldstein’s diligent exploration of “The Stubborn Problem of ‘Testilying’” in three carefully reported articles in The New York Times.
Goldstein identifies 25 specific cases of police lying that, he contends, “reveal an entrenched problem several decades in the making that shows little sign of fading.”
Some of Goldstein’s sources describe the absence of punishment as the cause of the police lying problem. Others see the increased likelihood of punishment (enhanced by ubiquitous body-camera and surveillance videos) as the solution to the problem.
But what if we widened the lens a little, and thought about “testilying” not just as a moral transgression (it is certainly that) that is often (when done under oath) a crime, but also as an unsafe practice?
What if we saw “testilying” not as an exotic artifact of the unique secret world of policing, but as one of the characteristic responses of normal people, doing normal work, in normal organizations, and reacting to acute pressure to produce?
There is no doubt that police lying creates dangers. Goldstein, for example, describes in detail one episode that would have convicted an innocent woman and let the actual criminals go free.
He reports other lies aimed at shielding unconstitutional searches and seizures from review by judges that are dangerous in another way. Those lies are “unsafe” because they undermine the public’s trust in the law and in the people who enforce the law, especially when they are seen in combination with an endemic failure to act against the liars when they are exposed.
(There’s some pretty robust social science showing that for ordinary citizens, trust in the law and its officers—more than fear of punishment—is what leads to law abiding behavior.)
The first thing that the safety perspective would teach us is that you can’t quarantine the toxin of “testilying” within the policing silo.
It might be enjoyable for prosecutors, defenders and journalists to preach from our ethical heights about police misconduct, but “testilying” is a system problem. If you want to attack it, you have to go not just “down and in” to deplore the character of individual liars, but also “up and out” to understand the forces that are acting on them.
Safety experts would say that a cop’s decision to lie doesn’t reflect an inbred delight in lying: it’s an attempt to make sense of the conflicting goals and demands that batter workers at the sharp end of any system.
Like the workers who painted over defects in the insulating foam on the fuel tanks of the space shuttle Columbia to present a nice smooth surface, *cops who bend their narratives are making a “locally rational” even if morally distasteful decision.
They zig when they should have zagged for reasons they think make sense.
Testi-liars aren’t shouting in defiance of the rules. They are covertly trying to tailor their work to the demands they feel. A cop’s lie is a “workaround,” and the decision to lie is the conclusion of an exercise in “sense-making.”
They are doing what they think is expected: evading inconvenient requirements to get on with what they have come to see as the “real” job.
The system’s other players shaped the demands that the cops are juggling.
It is easy to see how the “upstream” work of dishonest cops impacts the “downstream” work of prosecutors, defenders, and courts.
But the safety lens helps us to see that the ramshackle downstream inspection apparatus and the pressures on its operators also impact the upstream environment of the cops.
It is true, as Goldstein notes, that since hardly any case goes to trial, it is unlikely that an upstream lie will be exposed by cross-examination, and that fact reduces the risks of lying for police. (Goldstein’s own solutions to the problems include more suppression hearings and more transparency about credibility findings at those hearings.)
But it is also true that the downstream actors need the guilty pleas to meet their own production pressures.
Pleas aren’t frequent because they facilitate lying. Pleas are frequent because they clear overwhelmed dockets and maintain downstream system outputs.
Guilty pleas can promote lies, but lies can promote guilty pleas, especially when grudging local discovery rules and the caseloads of underfunded defender agencies make pretrial exposures of the lies practically impossible. These influences are circular—not linear and unidirectional.
For safety practitioners the statement “They lie because they can get away with it” just raises the question “Why did they want to lie in the first place?” Evading the Fourth Amendment’s search and seizure rules isn’t an end in itself.
What is the incentive for that evasion? Who creates it? Why?
What we confront here is not one big institutional policy decision to start lying.
As Goldstein points out, the problem has been “decades in the making.” Many cops never lie. No one lies all the time, but we have seen a long series of individual decisions to cut corners and bend the truth that slowly became, not admired, but “normal.”
We expect novices to follow the rules, but we also expect our expert veterans to avoid rule-bound paralysis, to be able to innovate and improvise, to fill in the spaces between the rules. The work as it is written down in the manuals and the work as it is actually performed are never exactly the same thing.
As policing scholar Egon Bittner pointed out years ago, “legality” and “workmanship” are two different standards, and police culture is attuned to the latter.
The process of drift under pressure, one small decision at a time, having been set in motion where truthfulness is concerned, the criteria of legality and workmanship have landed pretty far apart.
Most departments plainly state that untruthfulness in a cop is a fireable offense. That’s the rule.
But maybe it shouldn’t be surprising that the people operating the police disciplinary system, because they know that lying has become “normal” (and probably know that their organizations have been complicit in the “normalization of deviance”), see it as disproportionate to ruin the career of someone who—maybe just this once—stepped over the line.
The conduct rule for cops (“Don’t lie”) and the tacit disciplinary decision rule for departments (“Don’t fire for normal behavior”) have landed pretty far apart too.
No system can survive without disciplining its conscious rule-breakers. Perjury is a crime—a red line—and it has to be prosecuted.
But we ought to recognize that this is a complex problem that took a long time to develop. By now we need a culture change. There’s no quick fix available.
The ferocity of the discipline is not its most important quality.
As police leaders such as Darrel Stephens have suggested, the real question about discipline is whether anyone learns anything from it. For learning to happen we need to commit to a disciplinary system that is steady, consistent, and proportionate.
We need a system that treats first offenders differently from habitual liars, that encourages peer intervention instead of driving reports of violations underground with threats from On High, and that shows the public we care about the truth.
We might start by avoiding teaching the wrong lesson by promoting cops we know have lied. We could ask whether we are motivating lying because we do discipline for technical legal errors and missed quotas.
We might make it clear that a detective has already done part of his “real” job when he gets an illegal gun or a bag of drugs off the street, whether or not he gets the gun or drugs into evidence. (That seizure may not be a home run; it is a slip we can live with. But don’t do it again.) We can show that workmanship requires compliance with the Fourth Amendment that will get the items into evidence next time, while protecting citizen’s right.
Yes, we can discipline liars. But we should also dry up the market for lies, and the pressures that market exerts.
The safety of the communities will be enhanced. And so will the safety of officers.
Usually we react to revelations such as those in the Times’ “testilying” articles with the British Navy’s solution that Voltaire ridiculed in “Candide”:
In this country it is good from time to time to kill an admiral to encourage the others.
Ultimately, however sanctified it may make us feel, subjecting an occasional cop to a disciplinary lightning strike while we make the rest of them calculate that unlikely possibility on the street won’t promote the respect for the law we need.
Spasmodic discipline corrodes respect for the rules inside the police world. If we want cops to behave in a measured, honest fashion on the street, we’ll need to find a way to treat them that way too.
And the rest of the system will need to find a way to live without lies.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.