Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Economist has an interview with Radley Balko, most of which focuses on his work on the problems in our criminal justice system, which have so obviously informed my own writings on the subject. There's a lot of really good stuff here. Balko does a brilliant job of expressing -- briefly, concisely, accurately -- some of the key issues that are subverting the cause of justice in America. On the militarization of law enforcement:
This has led to a militaristic mindset among America's police departments, beyond just SWAT teams. Driven by "war on crime" and "war on drugs" rhetoric set by political leaders, police officers have increasingly taken on the psyche of soldiers. There's a pervasive and troubling "us versus them" attitude in policing today. Policing has become more reactionary, more aggressive, and it's poisoning the relationship between the police and the communities they serve.I should add that I don't think police officers themselves are to blame for this, nor, obviously, are all police officers guilty of it. These are problems spawned by 35 years or so of bad policies set by politicians. That's really where any reform would need to start.
On the many problems with forensic evidence and its use and abuse in court:
The main problem with forensic evidence is that it isn't science but it's usually presented to juries as if it were. Forensic evidence--think fingerprint matching, hair and fiber analysis, ballistics, etc--has been largely invented by and developed by police and police organisations. But when its presented in court, it's often presented with the gloss of science. It's telling that the one type of forensic evidence that actually was developed in the scientific community--DNA testing--is really the only type that's relatively certain (provided the evidence is handled properly). And it's showing us just how flawed and overstated other areas of forensics really are.The other problem is that science is a process. It's sort of a journey toward truth. The criminal-justice system isn't shy about embracing new theories during criminal trials, but once the trial is over, the system puts a premium on finality. The courts set the bar very high when it comes to overturning convictions won in part or in whole based on science we now know is junk. Bite-mark analysis is a great example. Lots of people were sent to prison in the 1990s thanks to a small cadre of self-proclaimed bite-mark specialists. We now know there's simply no scientific support for the idea that you can match bite marks in skin to one person's teeth, especially to the exclusion of everyone else. Another good example is recovered memory psychoanalysis, which was responsible for dozens of wrongful convictions in the 1980s.
The part that I put in bold is very important. The advent of DNA testing has meant overturning hundreds of convictions that were based on the usual range of evidentiary tools used to get convictions. In case after case, it's been shown that people convicted on the basis of multiple forms of forensic evidence were really innocent.
We're finding that the kinds of evidence used to convict people every day can be highly inaccurate. In nearly all cases, the wrongly convicted were identified by one or more eyewitnesses. In nearly 1/4th of wrongful convictions, the person actually confessed to the crime, almost always under duress or coercion, so even admissions of guilt are not a particularly reliable determiner of actual guilt.
On the perverse incentives at nearly every step of the criminal justice system:
At every step in the process, the incentive is toward putting people in jail. And there's almost no penalty at all for state actors who overstep their authority. Police departments, for example, get federal anti-drug grants based in large part on how many people they arrest on drug charges. After the botched drug raid in Atlanta a few years ago in which a raiding police team shot and killed an innocent 92-year-old woman, we learned in subsequent investigations that officers had monthly quotas for drug arrests and drug seizures. Ed Burns, the former Baltimore cop and co-creator of the magnificent HBO show "The Wire", talks about this quite a bit.It's also true of forensics. If a crime-lab technician reports to the local DA, there's always going to be some pressure--subtle or overt--to tell the prosecutor what he wants to hear.
But the incentive problems are most apparent with prosecutors. Prosecutors get no credit for cases they decide not to bring, either because of a lack of evidence or because pressing charges wouldn't be in the interest of justice. They're only rewarded for winning convictions. That's what gets them promoted, or re-elected, or gives them the elevated profile to run for higher office. Every incentive points toward winning convictions. And particularly with prosecutors, there's really no penalty at all for going too far to get a guilty verdict. One real disservice the Duke lacrosse case did for the criminal-justice system is it put in the public consciousness the idea that bad actors like Mike Nifong are regularly disciplined for misconduct. In truth, that case was really exceptional.
There have been a few prosecutorial misconduct cases before the Supreme Court over the last few years, and what's really striking when you read through the briefs is just how rarely prosecutors are sanctioned in any way, even for egregious misconduct. Not by courts, not by bar associations, not by state attorneys general. The Innocence Project estimates that prosecutorial misconduct factored into about a fourth of the wrongful convictions that organisation has helped expose. None of the prosecutors in those cases faced any serious sanction. It's impossible to sue a prosecutor, even if he intentionally withholds exculpatory evidence that sends an innocent person to prison. The Supreme Court will rule this spring if prosecutors who manufacture evidence that sends an innocent person to prison can be sued. I think a lot of people would be rather shocked to hear that such a notion would even be open to debate.
Most prosecutors are well-intentioned, honest public servants. But it's deeply troubling that those who aren't are almost never held accountable, and in fact are often re-elected, appointed as judges, or go on to get elected to political office.
Very well said.
Politics
Comments
"These are problems spawned by 35 years or so of bad policies set by politicians."
Yes, and it's the American electorate that chooses to believe that these "war-on-crime" and "war-on-drug" policies actually work, all empirical evidence to the contrary be damned. So let's not be so quick to blame politicians for doing what is in their nature to do: figure out what it is that people want to hear and then tell it to them. The public believes these lies because it's easier than facing the truth.
Posted by: MTiffany | December 1, 2009 9:38 AM
Actually, the attitude of cops is the fault of the cops.
Cops are creature of ego. They are the grade school bully with a badge. Most of them aren't the sharpest lot, but give them a badge and gun and suddenly they're king of the street, holding life and death in their hands. They strut around lording it over on everyone.
They are the enemies of social progress. Pick the struggle, worker's rights, civil rights, there's been cops there breaking heads of those fighting for freedom and justice.
Policing in the USA needs a complete reorganization, from top down. Get rid of the military structure. Severely limit the right to use force. And above all, make them keep constantly in mind that they are public servants, not little tin gods.
Posted by: Comixchik | December 1, 2009 10:00 AM
One of the problems is also that the money police departments get goes directly to private contractors (who supply the fancy new firearms, detection devices, all that stuff) and then lobby legislators.
I was a reporter in Charlotte County, Fla. Population about 100,000 if that. The county sheriff was a decent fellow, but he wanted a new helicopter. The county already had several, in differing states of repair. To put that in perspective, New York City has 10 for a police force of some 35,000 officers. The Charlotte County sheriff's department had (this was in 1996) maybe 100 people or so.
But the reason he wanted the 'copter? Hey, the money from the Feds had to be spent on something, and a helicopter is a lot flashier than community policing or hiring a guy who speaks Spanish. Or maybe hiring a counselor for rape victims.
The military-appearing stuff is visible and very macho, and makes politicians -- and some citizens -- feel good. I noticed that anti-government conservatives are also very into law and order and fall over themselves worshiping anyone with a gun. For them, there is no wasteful spending in the military or police by definition.
There's also the power-tripping aspect. Police are not well paid in many jurisdictions -- in NYC they just messed around with the pay scales, making it difficult for new recruits to live off their salaries. Well, the temptation to take a bribe decreases the better you pay someone. Offering continuing education for cops would also be a big plus. (Like, subsidizing a college degree). Without stuff like that, the kind of person who becomes a cop is more likely to be a power-tripping bully. And that leads to the mentality that Balko is talking about. Screening is important, but it isn't visible like new guns.
I might add that in the Duke case if those kids had been black they would be in jail or the cops would have killed them out of hand. Latino and black citizens of New York have complained for a long time that a cop can basically shoot you in the back of the head and justify it after the fact. The number of cops convicted of assault (even when they kill someone) is very, very small. Sexual harassment by cops is also a common problem, adding to the mistrust.
Is every cop guilty of this? No. But if the first reaction to cops is not "s/he is there to help" but "s/he is there to kill me/ shake me down/ harass me" you have a problem.
Posted by: Jesse | December 1, 2009 10:01 AM
Because they were ordered to do so, Comixchik. They didn't just do those things on a lark. It is not necessary for enforcers of the law to have a schoolyard bully mentality, but the laws they have been told to enforce and the means they have been given to enforce them strongly encourage that mentality to develop.
MTiffany,
I agree that the politicians we elect are a reflection of popular preferences (or apathy), but politicians have an obligation to be better than the people they presume to rule. If they're not, then they shouldn't be ruling in the first place.
Posted by: Gretchen | December 1, 2009 10:07 AM
How often do they hear or see anything to cast doubt on the self-congratulatory announcements of people like Ed Meese or Joe Arpaio?
As the song goes:
Posted by: D. C. Sessions | December 1, 2009 11:38 AM
I really hate doing this, but;
In defense of the helicopter, Charlotte county is covered with large swathes of slightly developed land, that is 30 years ago a developer built roads all over the place, sold parcels and then went bankrupt, leaving a huge area of heavily brushed land riddled with roads. It's a great place to drop bodies etc. Like the NJ Pinelands were 40 years ago.
That said, the Charlotte gov, is inept and corrupt, and their citizens are paint huffing banjo pickers too stupid to get out of the rain. Consider, there'd lotsa guns in Fl, a ton of concealed permits, but every time I visit Punta Gorda there's stories in the paper about car-jackings and home invasions and follow-ups on the search for the "alleged perpetrators". I felt safer in Newark NJ or NYC than I do down here. At least there I could tell who the crazies were, down here you have to assume everyone is.
Posted by: The Pale Scot | December 1, 2009 12:30 PM
Talking about poorly paid cops, I believe the FOP's backing of Ohio Issue 3 (casions in the cities) that tilted the verdict in favor, is driven by the possibility of a raft of "Rent-a-Cop" job openings at these planned casinos. Of course with casinos other money opportunities also emerge, but I shan't go there. I am a citizens' volunteer aux. cop and cannot say this enough, policing is a 3-D job, dirty, difficult, and dangerous. It is far far riskier to be cop, in the US especially, than a soldier in A'stan today. Criminals are very well armed, and neighborhoods sparsely populated. Cops cannot as a rule shoot first and ask later. I am thankful to cops, and also wish we would revamp our criminal justice and policing system so that in about 30 years from now we don't have to talk about the same things as today.
Posted by: impal | December 1, 2009 1:08 PM
Eh, I'm pretty sure the numbers don't bear this out... There are about 100,000 coalition troops in Afghanistan (source: CNN International), and there were 485 coalition deaths in Afghanistan in 2009 (source: iCasualties.org). There are about 800,000 police officers in the US (source: Yahoo! Answers -- but I'm pretty sure it's accurate) and there were 111 officers killed in the line of duty in 2009 (source: odmp.org). (Sorry no links to sources, they would have gotten caught in SciBlogs stupid spam filter)
So in 2009, you had about a 48 in 10,000 chance of dying as a soldier in Afghanistan, vs. about a 1.4 in 10,000 chance of dying as a police officer. Or in other words, you are over thirty times more likely to die if you are a soldier in Afghanistan than if you are a cop in the US.
Not that I'm trying to minimize how dangerous it is to be a cop! Presumably, software engineers don't have a 1.3 in 10,000 chance of dying on the job in any given year, yeesh, so I know I've got it easy. But I gotta call bullshit on the comparison to a soldier in Afghanistan... it's WAY more dangerous to be there.
Posted by: James Sweet | December 1, 2009 1:24 PM
I wonder if most cops know that in terms of dangerous jobs in the U.S., they don't even make the top 10.
http://www.nowpublic.com/tech-biz/americas-deadliest-jobs-2009-top-10-list
Posted by: LJM | December 1, 2009 1:37 PM
Not that I'm trying to minimize how dangerous it is to be a cop!
Then I will. Being a cop is nowhere near as dangerous as most people believe, or most cops want you to believe. I'm not aware of a single year in the past decade where police officer even made it into the top 10.
Logging, fishing, farming, construction, mining, roofing, truck driving, taxi driving, are all consistently and significantly more dangerous than police work. And of those officers killed in the line of duty, typically more than half of them are from NON-homicide (motor vehicle crashes, etc)
Yes, they have an important, and risky, job. But the constant refrain of "Be thankful we have these heroes who are willing to put their lives on the line every day" is just so much authoritarian hero-worship or well intended but ignorant nonsense, and it just exacerbates the "Us vs Them" problem.
Seriously, when did policemen start calling their fellow citizens "civilians"?
Posted by: Ken | December 1, 2009 3:51 PM
This is all very serious, but neither eyewitness testimony nor confessions fall under "forensic evidence", so what relevance does it have to the bolded part of Balko's interview that it seems to be a comment on?
Posted by: konrad_arflane | December 1, 2009 4:19 PM
It is always interesting to see what sorts of people are attracted to what jobs. What seems clear is that people that have issues, either positive or negative, with the main aspects of a job get drawn in. A friend who operates heavy earth moving equipment admits that he was fascinated by the masculinity and power of the job when he was a powerless, destitute kid without a father figure. Operating a huge bulldozer fills that empty spot he felt as a boy. He usually has a huge SEG when he is running heavy equipment and, by all accounts, he is a very good equipment operator who teaches the craft and consults with major heavy equipment manufacturers on their designs.
One examination of psychologists seemed to point out that a central touchstone in their getting into the field was having an existing or prior mental illness or having a member of their family having one.
It goes to what we think and the human tendency to focus and return to thinking about things that either bother us and/or things we really enjoy.
Police are not different in this point. They naturally attract people with authority issues, people who have control issues, people who seek order, people with issues over power, justice and rules. Larger police departments have screening programs to weed out applicants whose particular manifestations of their issues are too extreme to do the job well. The process is not perfect and there is the tendency for people to deteriorate over time.
Law enforcement wears on the psychology of people involved. Acting out, typically through alcohol abuse, self-medication and violence. Domestic violence, inappropriate violence on the job, self-destructive behaviors and suicide are all common. As is the tendency for law enforcement to become a fraternity and club full of isolated good-ol'-boy' caricatures.
The danger and dependence on each other for support and safety, and the ever increasing distance from the general public leads to a culture where a wide and high 'blue line' exists with people being judged and treated differently depending on which side of the line they are on.
All this is made even more difficult in small towns and rural counties where resources are stretched thin and initial screening, counseling, psychological intervention and tight reviews and controls on an officer's behavior are all sacrificed to keep costs low. Small departments often have problems filling positions because pay is low, work conditions are poor and benefits are lacking. So they get a whole lot less picky on who they hire. Bad officers often bounce around from one small department to another for years before they commit some act so egregious that it can't be equivocated away or excused and they lose their certification.
Of course a person attracted to law enforcement isn't going to give up the cause so they will often turn to jobs as security, body guard, rent-a-cop, private detective, and bounty hunter.
A local man was convicted of aggravated battery when he beat up and maimed a couple of kids who crossed the parking lot where he worked as a parking attendant one too many times. It turned out that he had worked in a major city as a police officer but washed out in the probationary period for excessive use of force. He had then bounced from one small department after another usually quitting after the locals complained about his violent behavior. He worked as security at an industrial plant before being fired for punching someone accused of stealing materials.
He had never been formally accused of any crime before he went off on the kids. During the trial it was revealed that as a child he used to see his father beat his mother and had been told that a man had to 'stand his ground and show people who was boss'.
A kid grows up with a feeling of weakness and control. He learns that a man uses violence to control people. He may have been impressed by the power of the police who frequently came to their home. He seeks validation and control by using violence and is drawn into law enforcement by his desire for control and order. He becomes a one-man crime wave bouncing from department to department and escaped prosecution because of 'professional courtesy' and sympathy from other LEOs. Over time he slowly wears out his welcome and loses protection from the consequence of his actions. Finally, frustrated by his low pay and lack of status, he takes his anger out on a couple of kids who dared to cross his kingdom and is finally charged with a crime.
I have wondered what would have happened if the kid would have gotten counseling. Or if his mother had gotten out of the situation earlier. Or if the society had more effective ways of handling domestic violence. Or law enforcement had better ways to weed out people who are unsuitable for work in law enforcement.
So it goes.
Posted by: Art | December 1, 2009 5:03 PM
James @ #8,
Thanks for the analysis, it gets rather tiring the "it's more dangerous to be a cop than..." argument that is proven to be false over and over again.
I have an old college buddy who became a cop about 15 years ago, he was doing it from pretty much day one, so at least in the midwest it's a good decade plus old as a habit. I would cite crap like this to argue that the police as victims of political strategies and policies run amok is, at best, questionable. I knew and know a number of people who became police officers, sheriffs, etc. Just about all of them had rather "us vs them" authoritarian streaks long before they became officers. I am most certainly not claiming that this is a universal, etc., but I would argue that people who aspire to power and authority tend to gravitate towards law enforcement. These are the same people who often have problems with the idea that others have free speech rights, that others have property rights, that others can have differences of opinion, etc. All of these factors play into the militarization of law enforcement. By definition many of those who wish to uphold the law have a serious problem with anyone who questions the law. Many law enforcement types I've known over the years, and numerous students who aspired to become law enforcement types over the years, have very serious problems with anyone questioning the validity of a law, questioning the status quo, etc. Personally I think, for many of them at least, it is part of their nature.
Posted by: dogmeatib | December 1, 2009 7:03 PM
I highly recommend Balko's blog theagitator even though he's a libertarian and I disagree with him on a whole lot of things he is intelligent and thoughtful. His work on law enforcement is some of the best there is.
Posted by: Urgo | December 1, 2009 9:40 PM
I think there's plenty of blame to go around for America's fucked-up policing. The personalities of those who choose to become cops; the orders they get from elected officials; the militaristic and authoritarian tendencies of the voters who elect the officials; the mass media that encourages people to think in simplistic, us-vs-them ways; the people themselves, once again, that reward the media for selling them this crap...
As far as I can tell it's all a big cycle and I don't know where the blame should start, unless it starts with God for making people like this. (YMMV and I'm not trying to start a discussion about that.) There's no easy solution and there may or may not even be a difficult solution... sigh...
Posted by: Tom | December 1, 2009 10:44 PM
Mostly agree, though I do have to point out that in the wake of the recent Gates incident, I encountered a cop on the blog-o-sphere who claimed to have entered the profession because he was fascinated by the intersection of the necessity of policing with issues of civil liberties. Still a fascination with the profession, so it fits your thesis, but it's also probably true that not all cops have authority issues. (Though most of the ones I have met... yeah, I won't go there)
This particular guy also had a really insightful opinion on the Gates incident and on disorderly conduct statutes in general. He made a very strong case for the necessity of disorderly conduct laws, while also observing how open they are to abuse. He also came down on the side that the arresting officer in the Gates case had failed to exercise proper discretion and should not have made the arrest -- a rare opinion for a law enforcement officer to have.
So I tend to believe the guy about his motivations. He didn't seem authoritarian, he seemed genuinely interested in issues of conflict between individual rights and the need to maintain order, and whether you agree with him or not, he had some insightful points to make.
But yeah, seems like most of 'em are more into the authority issues...
Posted by: James Sweet | December 2, 2009 11:17 AM
It is true, prosecutors are rarely held accountable for misconduct. The Tim Master's case is a prime example. These Larimer County CO prosecutors now judges barely got a slap on the hand. Larimer County judiciary, including, public defenders are now under scrutiny for collusion. Check out larimercorruption.com. These people were all part of the judiciary handling my sons case and they are the most careless of humanity. jasonpecci.blogspot.com
Posted by: Mary-Ellen Pecci | December 2, 2009 1:00 PM
I've been a Deputy in the Houston area for 19 years, and I agree with the majority of the posts on this subject, but would like to point out a couple more that I've noticed.
First there is no minimum, national standard for being certified as a cop. There is no minimum education requirement, and more importantly, no minimum IQ. About ten years ago I read a study which showed the average IQ of officers in the country to be 92. I'm sure I don't need to tell you how frightening that is. When I first hired on there were certified officers who would ask me to fix their reports because they were barely, functionally literate.
Second, and this is not anything I've ever seen a study on, but just from my personal observations, is youth. The vast majority of violence and ego problems I've seen have been from the younger officers. The older the officers get the more likely they seem to be to be patient, and polite with people. It may sound silly, but criminals are not very complex. Most of them are quite childish. They may be violent children, but still, all you generally have to do is be nice, and be patient. It's really quite easy to talk 98% of the people you have to arrest, right into the handcuffs.
The young guys just dont seem capable of it. There much more likely to be "bowed up", and verbally confrontational. The vast majority of violence is personal. If you dont do or say something personally offensive or confrontational, you can almost always count on not having any violence thrown your way. And I dont work in the suburbs, by the way. My district is quite infamous. It's the hottest, wildest, district to work in the whole county, and I only have to use force in less than 1% of the arrests. Due to all of the afformentioned, it appears the youth of the officers is a serious consideration as well. Texas law says a Police Officer can be 21 years old. lol yikes. How many 21 year olds can you give the power of arrest to?
Oh, and a third which just occurred to me, and which I've seen Ed also state repeatedly, but which I did not see on the above posts. Video and audio recording should be mandatory every minute the cop is on duty. This is hugely important. It would make the evidence for the prosecution much more reliable, and would keep in line those people who are not capable of having that power without "adult supervision".
Posted by: Chris | December 2, 2009 3:54 PM
Although bite mark analysis isn't perfect by any means, on account of how stretchy skin is, it can play a very important exclusionary role (if the bite mark shows that the perpetrator was missing a tooth, it pretty much rules out anyone who still has that tooth). It can't be used for positive ID, but it can be pretty good circumstantial evidence.
Posted by: Awesome McCool | December 2, 2009 8:06 PM
Finally found time to read the Balko interview, which was excellent. I totally agree about the negative effect the drug war has had on officer-public relations.
I do think he skimmed over a step in his drug war -> increased SWAT deployments argument. The reason police so often use SWAT teams to serve drug warrants is because drug traffickers are (as a group) so violent and militarized themselves. I'm sure Balko knows this and probably felt it was implied. But I think it's worth pointing out that the police didn't just up and decide one day "You know what? We should use SWAT to serve drug warrants!" It is a necessary reaction to the violence involved in drug trafficking.
I say this not in defense of the drug war - just the opposite! The parallels with Prohibition are obvious. I'm just saying blaming it all on the cops is too easy by half. (As Balko himself points out.)
Posted by: WScott | December 2, 2009 10:10 PM
I believe I mentioned on another thread here that I'd just finished Grisham's excellent The Innocent Man. I just read it again.
A mentally handicapped man wound up on death row at the hands of what was essentially a perfect storm of malicious prosecution (for which no-one has ever been brought to book), sloppy forensics (which may actually constitute evidence tampering), jailhouse confessions (every one proven false), and corrupt policing (one of the officers was involved in drugs deals with one of the informants).
In the course of reading this I learned for the first time that hair fibre and bitemark evidence are not what they're presented as in the papers.
I also learned of the travesty of the Ward/Fontenot case. Two men were badgered into false confessions and sentenced, one to life, one to death.
Both men were proven innocent in that their confessions claimed that they'd stabbed the victim in a house and then burnt it down.
The house had burnt down months prior. Police either knew this and concealed it, or failed to raise the issue.
The woman who was killed, when her body was found, turned out to have been shot.
However, due to the fact that they had been convicted on confessions and not on physical evidence, there's no recourse, no way to have the charges dismissed, no way to ask for a retrial.
There are two men serving life in jail who are clearly innocent, but for procedural reasons, they cannot be freed.
How completely and utterly FUBARed is that?
Posted by: Metro | December 3, 2009 8:36 AM