So, if police and policing are the major political obstacle to a better future on crime and punishment, what can erode or undercut their power to oppose more far-reaching reforms? That is the necessary first step. It’s possible that if police departments and their ancillary organizational support systems are put in a situation where they cannot safely or entirely block, ignore, or bulldoze reform programs, they can become partners in reform. Right now that is just not the case, even where the leadership of a particular department seems amenable to change.
The more far-reaching reforms have to redefine crime as well as redirect resources and authority presently vested in policing. Before that can happen, it may be necessary to extend and intensify one existing domain of criminal law and impose harsh mandatory sentencing associated with it.
Activists and advocates of police reform often focus on pressuring prosecutors to bring cases against police accused in fatal shootings, deaths in custody, and violent abuse of suspects. When prosecutors not only convene grand juries but use the considerable discretion at their command to press for indictments, activists and communities then spend anxious months hoping for a conviction. In cities where the potential for anger and popular mobilization following a disappointing verdict threatens the political and professional future of mayors, city councillors, district attorneys and police leaders, there’s been some movement, however reluctantly, towards police cooperating in these prosecutions. In cities and states where anger from Black communities or other groups may be less threatening—or even enhances the political appeal of conservatives to their white political base—police and prosecutors still freely impede or undercut investigations and trials.
I think there’s a shift in tactics that has much to recommend it. The problem in part with holding police accountable for fatal shootings, deaths in custody or violent abuses during arrests and bookings is that there are too many opportunities for these actions to escape direct surveillance—places where the police know they can’t be seen, malfunctions of worn cams or overhead cameras that can be arranged, and so on. More importantly, there is a fundamental legal provision that police are extremely adroit expert users of, which is that if they testify that they genuinely feared for their lives or the lives of other police during an arrest or other interaction with a suspect, they cannot be held criminally responsible. The standard of proof is genuinely difficult to achieve and a judge inclined to be protective of police prerogatives can intensify the perceived difficulty of achieving that standard in their instructions to a jury.
We could work to change that, but there’s a real point buried beneath generations of bullshit misuse of the evidentiary standard. Any high-stakes work that requires split-second thinking is going to lead to actions that afterwards are obviously errors of judgment that had dire consequences. Even if you take away everything that might cause distraction or impairment when you’re driving, for example—no cell phones, no changing channels on the radio, no people talking to you, no sleep deprivation, no alcohol or drugs, 20/20 vision, good posture, good focus on the road—there are moments where something unexpected happens. Another driver is impaired or makes a bad impulsive decision. There’s a large unavoidable piece of debris in the road. A tree comes down in a windstorm suddenly up ahead or there’s a vehicle on fire in the shoulder. Or more to the point, with nothing impairing your judgment, you still make a boneheaded move—you change lanes without looking, you pass with low visibility, you get frustrated with an aggressive tailgater and brake-check them, you head into a turn too quickly and underestimate how sharp it is.
If anybody—police or otherwise—has to decide quickly about what to do with a 300-lb drunk who is swinging a baseball bat at people outside a bar, has to decide what to do with an armed man who wants to “suicide by cop”, has to respond to a report of domestic abuse only to find a raging man inside a home armed with a knife, etc., then whomever does that work may make a mistake that we don’t want to criminalize or even fire them for. On some level, the idea behind the standard is valid, it’s simply that it’s grossly abused in practice and that conceptually it vests the standard on how a police officer felt, which is extraordinarily difficult to falsify or challenge even if prosecutors, political officials and juries shifted towards a more aggressively skeptical view of police testimony in such cases.
My suggestion is to try something else that uses the existing criminal system to advantage in checking police abuses and dislodging police from their heavily fortified political position. In many ways, the more pressing problem with policing and the criminal justice system is the prevalence of false testimony as well as deliberate mishandling of and manipulation of evidence. False testimony, often coordinated through police networks, often a secret part of how police train one another into the profession, is what lets not only gross abuses and malicious errors of judgment escape legal challenge but also lets more routine kinds of misconduct continue festering over years and years—taking bribes and kickbacks, threatening or harassing a wide range of individuals within a patrol area.
In almost every case of police violence in the last two decades, there’s also been coordinated attempts by police involved in these incidents to suppress or destroy evidence and clear collusion in synchronizing testimony that ends up clearly falsified (even if no charges are brought for excessive violence). You can see it in every well-known incident: Michael Slager caught on video after shooting Walter Scott in the back, retrieving his Taser from the patrol car and dropping it next to Scott’s body, so that he could claim Scott took his Taser after a struggle. Police involved in the death of Eric Garner claimed they hadn’t used a chokehold on him and that he was breathing on his own after he had been subdued. The affidavit given to obtain a no-knock warrant for the raid on Breonna Taylor’s apartment had sworn police testimony about evidence-gathering activities that the police never undertook. Name a major well-known incident of police violence or police misconduct and there will be attempts to plant evidence, destroy evidence, or coordinate testimony somewhere in there.
Systematic investigation confirms that police lie about what they saw and what they did on a widespread, routinized level. Major urban police departments across the country have seen incidents of planting evidence, destroying material or losing body cameras that might incriminate police, and coordinated lying. The cases we end up knowing about are either the result of corruption so spectacular and repeated that it can’t be hushed up or a cop who gets careless with a body camera or recorded by a witness, but in the investigations and trials in those cases, there are convincing glimpses of a vaster terrain of deception that never leads to discipline or criminal charges. As the New York Times’ 2018 investigation of ‘testilying’ noted, quoting an officer, “there’s no fear of getting caught”.
There is no crime of grave import with deeper roots in Anglo-American common law and constitutional thought than lying in court, manipulating or destroying evidence, bearing false witness. But here we are today where not only is perjury by the rich and powerful punished relatively lightly, if at all, but where police officers, the people whose testimony can deprive citizens of their liberty and whose actions can deprive people of their lives, health and property, are rarely if ever charged with evidence tampering or perjury.
The political fortress that defends policing has a ready response in cases of police violence against suspects: the suspect shouldn’t have resisted, should have complied, shouldn’t have run. Nobody, on the other hand, tries overtly to defend destroying evidence, planting evidence, or collusive perjury. In popular culture that romanticizes policing, the notion that some suspects deserve a few hard knocks is often condoned as unseemly but justified. Manipulative interrogation techniques are almost worshipped in TV policing. But not perjury or evidence tampering, even when the story suggests that it’s the only way to get a bad guy off the streets. (This is often the line in superhero comics that even a tough urban vigilante character will refuse to cross. Illegal methods of obtaining evidence? Sure. Planting false evidence or knowingly telling a false story to incriminate someone? No.)
So in terms of a politically-driven shift in the existing criminal justice system, this is promising terrain. It’s hard for police and their defenders to object to the harsher criminalization of perjury and evidence tampering in terms that seem to excuse or legitimate those actions. The legal standard for perjury and evidence tampering is hard to meet, but it’s gotten vastly easier with body cams and ubiquitous video. If an intensified criminalization of perjury and tampering were accompanied by increased and mandatory disciplinary penalties for failure to have body cams turned on during arrests or for cameras being turned off in evidence rooms and holding cells, then the potential of exposure to legal consequences for falsehood increase considerably.
So envision a three-pronged campaign: a) political pressure on prosecutors to bring perjury and evidence tampering charges against police systematically and automatically any time there is evidence for them; b) specifically intensifying mandatory criminal penalties for police, prosecutors or other officers of the court who commit perjury or evidence tampering; c) pressure on police leadership to make charges of perjury or evidence tampering automatic grounds for suspension and then dismissal if confirmed either by criminal conviction or by internal investigation—no second chances.
It seems at least as politically plausible as pressures for police convictions for unjustified violence in arrest and is considerably more systematic in the ways that forces changes in police behavior—a dramatic intensification of the criminal penalties for lying would put a wide range of police misconduct in a new form of jeopardy and at least knock a few holes in the political walls that protect policing at present.
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