Standing by Your Convictions

Standing by Your Convictions

It’s just how we’ve always done things

Police officers in Germany spend three years being trained. In the United States, officers undergo weeks of training, seldom over 90 days. Federal officers, especially the FBI, undergo much longer and more difficult training than most state and municipal cops. The aggregate cost of judgements and settlement against US cities and counties for police misconduct is well over a billion dollars a year. “A Legal Aid Society analysis found that New York City paid nearly $115 million in settlements last year alone…

“A growing number of such settlements in recent years have resulted from lawsuits filed by people after their criminal convictions were vacated by the courts. Many of those convictions dated to the 1990s, when soaring crime rates led New York City law enforcement agencies to pursue arrests at all costs. Those affected were overwhelmingly Black or Hispanic… A city Law Department spokesman said … that there had been an increase in convictions being reversed and that settling the suits arising from those reversals avoided protracted litigation and provided justice to people who had been wrongfully convicted.” New York Times, February 29th. $$$!

Even after cities have faced massive fines, horrible publicity, a new liability reality with ubiquitous smartphone footage and court-ordered mandates to change (even to the point of placing police departments under a judicial trustee), there are no great changes in the way police operated. Major cities are reviewing a mountain of convictions where patterns of malign patterns of misconduct are facing the possibility of hundreds of convictions reversed, generating more claims.

“Despite the repetition and cost, few cities or counties track claims by the names of the officers involved — meaning that officials may be unaware of officers whose alleged misconduct is repeatedly costing taxpayers. In 2020, the 25 departments employed 103,000 officers combined, records show.

“‘Transparency is what needs to be in place,’ said Frank Straub, director of the National Police Foundation’s Center for Mass Violence Response Studies, adding that his organization has called for departments nationwide to publicize cases with settlements. ‘When you have officers who have repeated allegations … it calls for extremely close examination of both the individual cases and the totality of the cases to figure out what’s driving this behavior and these reactions and to see if there is a pattern in an officer’s behavior that triggers these cases.’ …

“City officials and attorneys representing the police departments said settling claims is often more cost-efficient than fighting them in court. And settlements rarely involve an admission or finding of wrongdoing. Because of this there is no reason to hold officers accountable for them, said Jim Pasco, executive director of the National Fraternal Order of Police, the nation’s largest police labor union with more than 364,000 members.” Washington Post (3/29/22)

But there is a “no snitch code” among the majority of municipal police and sheriff departments, often backed up by strong unions ready to battle any notion of assigning responsibility for misconduct to a particular officer or group of officers. Tattoos showing a clear “get them” philosophy raged through police and sheriff departments in Los Angeles, with continued denial by executives in those departments that there were anything close to police gangs operating.

Todd Fries, an attorney and the executive director of the Northern California Innocence Project at Santa Clara University School of Law, wrote this piece for the April 24th Los Angeles Times: “Dozens of people across California have been wrongly convicted of crimes largely because of law enforcement officers’ flawed handling of eyewitness evidence. Courts have found instances of eyewitnesses feeling pressured to make an identification from a lineup even when the true culprit wasn’t present; making shaky identifications that were ultimately presented at trial as smoking-gun evidence; and choosing from lineups of photos in which some bore no resemblance to their description of the suspect, making the police’s preferred choice more obvious.

“That’s why my colleagues at the Northern California Innocence Project and I rejoiced six years ago when the state Legislature passed eyewitness identification reforms that we helped craft. The law now requires police to use evidence-based practices in handling eyewitnesses. It’s based on decades of scientific research into the causes of inaccurate and unreliable eyewitness testimony — the kind that has put innocent people in prison for decades and even for life.

“As of 2020, the law requires California police agencies to conduct ‘blind’ lineups in which the administrator doesn’t know the suspect’s identity; admonish eyewitnesses that the perpetrator may not be in the lineup, that they don’t have to make an identification and that the investigation will continue even if they don’t; ascertain and document an eyewitness’ confidence in any identification; use photos that generally fit the eyewitness’ description; and record the identification procedure.

“Unfortunately, our rejoicing over these reforms has faded considerably since they were put in place. While the state’s police departments have generally acknowledged their obligations under the new law, many are failing to comply with it… A new study led by the Northern California Innocence Project found that only 49% of the agencies examined were using admonishment forms containing all of the legally required lineup instructions. Most of the remaining agencies were using the same forms they had used since at least 2010, with no changes to reflect the 2018 law.

“Compounding the problem is Lexipol, a for-profit company that produces most California police departments’ policy manuals. The company created an eyewitness identification policy that wrongly downplays or misrepresents law enforcement’s obligations… For instance, throughout Lexipol’s eyewitness identification policy, the law’s uses of the word ‘shall’ are replaced with ‘should,’ suggesting the required practices are discretionary rather than mandatory. Lexipol’s policy also wrongly implies that witness’ identifications don’t always have to be recorded.

“It’s true that police departments bear the ultimate responsibility for ensuring that their policies and practices comply with the law, and Lexipol notes that contracting agencies are free to review and modify their master manuals. But our research found that the overwhelming majority of law enforcement agencies using a Lexipol manual — 90% — largely adopted the company’s eyewitness identification policy as written.”

“Get tough on crime” conservatives are also the ones championing cutting costs and letting police act without the level of responsibility imposed on everyone else. Cities struggling with budgets and very high levels of compensation and pension benefits to uniformed services often cut the number of officers and mouth additional training seminars as evidence of fixing the problem… but these bandages fail at every turn. Why municipalities can accept the massive settlements and judgments but will not materially alter and expand their training of new officers is beyond me. Sometimes the obvious is really, really, obvious. And contrary to expectations, the public is hardly safer if things stay the same.

I’m Peter Dekom, and where there is an obvious and ultimately cost-cutting solution to creating a lawful and functional police and sheriff department, it’s time to fight the barriers to effecting that necessary change.