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The Intersection of Lawlessness and Justice: Police Misconduct -

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Announcements

Article submissions are now open for the Journal! Deadline: December 19!

The Intersection of Lawlessness and Justice: Police Misconduct

By: Daniel Keum

Abstract:

The police hold several crucial roles to the functionality of the United States criminal justice system. One of these roles is in ensuring the laws to which society subscribes by are upheld. To ensure the rule of law is respected, this necessitates the police to wield power and the discretion to apply it. This power, however, can be abused through the form of police misconduct. The issue of police misconduct will be examined in this paper to expose the reasons why it occurs as well as what can be done to reduce it. This paper ultimately argues the reason police misconduct occurs is that the safeguards to prevent them rely on self-monitoring and this undermines accountability. This paper concludes by suggesting current safeguards against police misconduct should be reformed by adopting principles from our United States Constitution such as the separation of powers and checks and balances to police power in order to prevent further cases of misconduct.

Author’s Bio:

Daniel Keum is currently a junior at the University of Washington as a candidate for the Law, Societies, and Justice departmental honors and Political Science major. In his studies, he is interested in civil and human rights policies and looking at how certain political structures either foster or hinder their development. In particular, he has an invested interest in North Korean human rights and politics and one day hopes to contribute toward facilitating peace on the Korean peninsula. Daniel is also a writing instructor for the Instructional Center at the University of Washington and an intern for the National Unification Advisory Council of South Korea. This spring, he is excited to join Council member Jean Godden’s office at the Seattle City Council as an intern and learn more about the municipal law-making process. His plans in the future are to attend law school.

The semantics of “misconduct” indicates a form of behavior that deviates from an acceptable standard. In the context of policing, however, misconduct takes on multiple meanings. This can be a genuine error, a failure of discipline, or a product of reckless or negligent attention to procedural codes. It can also be deliberate — a means toward self-interested pursuits unrelated to enforcing the law and upholding justice — or, ironically, a way to enforce the ideals of justice and uphold the rule of law.

These notions reveal an important quality of police misconduct. It can be categorically organized into two parts: accidental or instrumental. This paper will consider these categorical identities of police misconduct to expose how and why it is manifested in the criminal justice system and, ultimately, propose solutions to existing safeguards to minimize misconduct.

In this paper, I argue that safeguards to prevent police misconduct are architecturally flawed because their design necessitates self-monitoring of their compliance. Further, I contend this dependency on self-monitoring undermines accountability, and at the same time, rationalizes incompliance to lawful conduct. To substantiate this argument, I will first explore the specific reasons and rationales of police in acts of misconduct. From there, I will discuss current safeguards against police misconduct and why they have been insufficient in preventing misconduct. I will conclude this paper by suggesting policy prescriptions to minimize future episodes of police misconduct.

Before the causes of police misconduct are explored, the definition of “police misconduct” must be defined. I interpret police misconduct as police behavior that, regardless of intent, fails to respect and uphold police codes of conduct and procedure, constitutional rights, and domestic laws. These forms of police misconduct are either accidental or instrumental. Primary examples include tampering and planting of evidence, perjury, consuming illegal goods and services during investigations, allowing false testimony, and withholding evidence.[i]

To begin, a major cause of police misconduct lies in the fact the police must fulfill numerous, critical duties amidst challenging legal constraints. The function of police in the United States is not singular. For example, the duties and roles of police officers include enforcing the law, investigating crimes and collecting evidence, bringing justice to criminals, and maintaining peace and order to civil and legal disputes.[ii] Police officers simultaneously serve as law-enforcement, peacekeepers, investigators, and work to bring justice. These roles reveal the duties of police officers are diverse and, importantly, are critical to the preservation of society.

In combination with the numerous expectations of police officers, lawful standards of conduct can act as impairments to police objectives. An axiom is helpful here: the greater the objectives, the easier they are accomplished with a greater range of choices. Negative constitutional rights and domestic laws, and certain police codes of procedure can act as constraints on police options. Lawful conduct requirements can become a barrier to fulfilling police duties, it conduces a situation where police officers must decide between upholding peace and justice or following the law. Either choice retains its merit, for both are naturally, strongly defensible – peace and justice are equally legitimate aims as upholding the law.

An excerpt provided in Arye Rattner’s book Innocent is instructive in demonstrating the relationship between legal constraints and police duties. In chapter seven, an investigator provides an example of how police may commit procedural misconduct, “[t]o conceal an unlawful search of an individual…who officers believe is carrying drugs or guns… they will falsely assert they saw a bulge….”[iii] Rattner’s excerpt demonstrates misconduct may occur due to a conflict of interest between serving the interests of society, such as public health and security, in tension with respecting the right of individuals such as their Fourth Amendment Constitutional rights. Respecting the individuals’ rights constrains the officer’s actions at the cost of potentially leaving social harm to persist within society, such as contraband. This illustrates the tempting rationality as to why some police officers choose to deliberately commit misconduct as a means to achieve a social goal they perceive as more valuable than following the law. The demanding versatility of police duties, in conjunction with the legal constraints, reveals a challenging police calculus for officers illuminating one reason police misconduct can be favored over upholding the law.

Regarding accidental police misconduct, the psychological bias known as “confirmation bias,” in combination with the routine emotional stress of police work, presents to be a significant factor in accidental misconduct. “Confirmation bias” is the tendency to exclude conflicting or contradicting information to one’s held belief.[iv] This can clout a police officer’s judgment about the likelihood of a suspect’s guilt.

An example of these factors interplaying together to cause accidental misconduct is the 1989 murder case of Officer Mark MacPhail. In 1989, an individual named Sylvester Coles informed police that Troy Davis was the murderer of Officer MacPhail.[v] Out of desperation to bring the culprit who had slain one of their own to justice, police officers, taking the tip of Coles, illegitimately framed Davis to be guilty in MacPhail’s murder. Police officers failed to conduct a proper and comprehensive investigation of the evidence to corroborate their conclusions, despite the presence of conflicting and questionable evidence, and charged Davis with the crime.[vi]

The case of MacPhail reveals how confirmation bias, in combination with the emotionally demanding environment of police work, holds a critical role in inducing misconduct. The personal loss of Officer MacPhail caused emotional distress to officers working on the case and worked to amplify confirmation bias, which can lead to accidental police misconduct. Any conflicting information exonerating Davis was disregarded and not pursued as confirmation bias worked to strengthen the officer’s own beliefs and discard anything else that weakened it.[vii] Sound judgment and reasoning were impaired, and requirements of police conduct, such as a fair and thorough investigation, were not followed in regard to Davis. The illegitimate charge of Davis as the murderer demonstrates the role of confirmation bias and heightened emotions in causing accidental police misconduct.

The causes of accidental and instrumental forms of police misconduct may vary, though it is clear they both obstruct justice and impartiality. There exists, however, legal safeguards against these miscarriages of justice. The first type is Constitutional: negative rights, which constrain government actions against the individual, such as the Fourth Amendment of the Constitution, secure the individual from arbitrary and impartial police conduct. The second type is domestic: state legislatures enact statutes, such as the Revised Code of Washington, and set specific limitations on police powers and outline protocols of behavior.[viii] The third is municipal: police departments set before themselves their own codes of conduct and procedural protocols to follow. Together, these legal safeguards delineate a clear boundary and protocol of police conduct, provide the threat of penalty, and grant the legal authority to check and deter police misconduct.

In one sense, the law holds the creative power in the boundaries, expectations, and procedural limitations in preventing misconduct. What the law dictates determines the legal reality of our society. However, the connection between law and its capacity to create protections is questionable in the context of the police. In one sense, the foundational purpose of the police is the enforcement of the law. This positions the police as the main defense against violations of the law, but also, grants the police with the same creative power of law. In theory, laws define the boundaries and expectations of social behavior. However, in reality, it is what the police tolerate and reject that determines the actual law of the land. Given this creative power, the police possess the ability to equally uphold and reject the laws they are expected to protect – including their own rules of conduct. The fundamental flaw of legal safeguards is imposing legal obligations on the police and expecting compliance to work. The capacity of legal enforcers to circumvent legal obligations is unaddressed – accountability and oversight become undermined.

In discussing solutions, the U.S Constitution provides a starting point. The framers of the U.S Constitution were aware the government, without checks or balance, could abuse its position of power. An unchecked government is similar to an unchecked police department by lacking external restraints; a lack of external restraints grants autonomy to these entities and misconduct can occur as a result of a lack of oversight. The framers addressed the problem of unchecked government by ensuring powers were decentralized through checks and balances.[ix] More specifically, the power to enforce laws became distributed and shared. As a result, accountability and oversight was integrated into the system. Police departments would benefit from this distribution of enforcement, when internal checks and balance of the police departments themselves fail to prevent misconduct, third parties can interject to halt it.

How do we incorporate a separation of powers and checks and balances into policing? The first proposal is empowering police departments to review each other, regardless of their jurisdiction size. This means police departments in federal, city, to local town police departments can review each other of misconduct and submit formal reports. This assumes, however, police departments are aware of what other police departments are doing. Increasing transparency and documentation to record police actions could address this problem. Another solution is increasing federal oversight of state police departments. Federal police bureaus would be checked and balanced by other federal government branches in order to prevent a hierarchal coordination of corruption. By taking these principles of distributing and checking power, accountability and oversight are introduced and misconduct becomes de-incentivized.

The Roman poet, Juvenal, wrote in his book Satires “Quis custodiet ispos custodes?,” translating to “Who will guard the guards themselves?” In this quote, Juvenal captures the fundamental issue of police misconduct: those who wield power cannot be restrained by the very institutions they themselves create.[x] The institution of laws, which attempts to prevent cases of misconduct, are meaningless if the police possess the power to judge what is tolerated and what is not. By applying the principles that guided the framers to prevent a tyrannical government, tyrannical acts of police misconduct can also be mitigated.

 

[i] Rattner, Arye. Innocent. Vol. 12, 140.

[ii] Wender, I.Jonothan, and Duties & Responsibilities Of Police Officers. “Crime, Politics, and Justice.” Sociology 372. University of Washington. 8 May 2014.

[iii] Rattner, Arye. Innocent. Vol. 12, 127.

[iv] Cherry, Kendra. “What Is a Confirmation Bias?” http://psychology.about.com/od/cognitivepsychology/fl/What-Is-a-Confirmation-Bias.htm (accessed 25 Jan, 2015)

[v] “Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency.” Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency http://www.naacp.org/pages/troy-davis-a-case-for-clemency (accessed 24 Jan, 2015)

[vi] “Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency.” Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency http://www.naacp.org/pages/troy-davis-a-case-for-clemency (accessed 24 Jan, 2015)

[vii] “Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency.” Significant Doubts about Troy Davis’ Guilt:  A Case for Clemency http://www.naacp.org/pages/troy-davis-a-case-for-clemency (accessed 24 Jan, 2015)

[viii] “Washington Mutual Aid Peace Officers Powers Act.” Chapter 10.93 RCW, http://apps.leg.wa.gov/rcw/default.aspx?cite=10.93&full=true, (accessed 26 Jan. 2015.).

[ix] Kelly, Martin. “American System of Checks and Balances – Description.”. http://americanhistory.about.com/od/usconstitution/a/checks_balances.htm (24 Jan. 2015).

[x] Juvenal, and Rolfe Humphries. Satires. Bloomington: (Indiana University Press, 1958).

 

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