No Justice, No Police
Flawed reforms (and reformers) alienate good cops and prolong a crisis, vvrites CHUCK BOSETTI
Justice and truth are two sides of the same coin. You can’t have one without the other. A protester lying to frame a cop is no better than a cop lying to cover excessive force. Both only beget violence, and the punishment should fit the crime for each. Thanks to a lot of good people who usually go unsung, things are reasonably calm in Pittsburgh right now.
But before past becomes prologue yet again, let’s look back — and forward — to reform alternatives.
Since 1997, beginning here in Pittsburgh, federal consent decrees have been the preferred tool of liberals to address police misconduct by mandating discipline, retraining or termination for cops violating criminal or civil law — regardless of rank. Conservatives believe the broad brush of federal intervention is invasive and costly, and penalizes an entire department for the actions of a few. While the past 20 years have seen polarization increase, they have also provided a public record to rebut opinion and spin. We all should remember that only fools continue to fight each other inside of a house on fire.
The decree process for any given city is outlined in a court order, which is essentially a contract between the police, the local government and the community. The decree is then monitored by a federal auditor. Like all contracts, though, it is only as good as its provisions and the character of those who enforce it. And there’s the rub.
One can’t really understand patrol-level issues without understanding their integration with the rest of the criminal justice system. And whether spin comes from the left or the right, respective proponents usually assume that “police culture” refers to patrol division alone. Each faction within the justice system loudly defends its own agenda and actions. But unifying, academic objectivity doesn’t appear to be a priority.
Consider the following absurdities revealed by public records during the past 20 years:
In an April interview, Emily Sussman of the Center for American Progress stated that Department of Justice investigations establish systemic corruption before imposing decrees. But in 1997 DOJ did not interview a single Pittsburgh officer, did not allow the police union (the Fraternal Order of Police) any input and ignored a 10-year performance audit by the city controller that largely contradicted their investigation (of which there is no written record). The federal action was based on 66 uncorroborated ACLU complaints. Five years and millions of Pittsburgh tax dollars later, only five cases went to court: cops 2, plaintiffs 3. One plaintiff got $3,000 and the other two got nothing. Federal judges in Torrance, Calif., and Columbus, Ohio, dismissed DOJ “investigations” without trials.
In September 2000, as Pittsburgh FOP legal chair, I met with then Deputy U.S. Attorney General Eric Holder to detail constitutional and contractual conflicts in the Pittsburgh
decree, which was the nation’s first. In January 2001 I received a letter from Mr. Holder thanking me for my “suggestions.” There was no further contact.
By December 2001 “stop and frisk” had notably decreased. Local news reported a 48 percent overall increase in homicides, but the increase for black citizens alone was 71 percent. As a result of political fallout after violent unrest over a 2014 police shooting in Ferguson, Mo., local cops began to hold back. This became known as the “Ferguson effect.” But it really began in Pittsburgh 20 years ago. The government had decreed only letter-perfect stops and it got them.
After 40 years of policing in patrol, investigations and administration, the only attempt to punish an action of mine was in 1998 for writing an analysis of the first consent decree in this newspaper. The attempt failed. The ACLU represented me because it didn’t want the decree it authored to appear as a “tool of oppression” for thenChief Robert McNeilly. After persistent controversy, the chief left Pittsburgh in January 2006 and is now a “monitor” for the New Orleans Police Department. The Pittsburgh decree auditor ignored the above First Amendment violation even though a federal judge had to correct it.
In July 2002, the U.S. 3rd Circuit issued a stinging opinion against the Pittsburgh police administration, whose unconstitutional restrictions on cops, approved by the city’s Law Department, cost Pittsburghers millions more dollars in fees and punitive damages for violating the civil rights of various officers. The decree demanded punishment for such violations but there was none for those in the administration, only for patrol officers. Like rogue cops, political appointees broke the law in order to enforce it. From 1998 through 2004 examples include:
• A reopened homicide case involving a white cop shooting an unarmed black suspect 13 times included “a critical incident review” that addressed only “policy” but not the possibility of criminal acts. Disposition: involuntary manslaughter.
• The decree auditor “lost” the 1998 use of force analysis after discrepancies arose.
• The U.S. 3rd Circuit struck down a regulation allowing the chief to restrict expert testimony at trial. The court’s description: “disturbing … unbounded discretion … could severely undermine a department.”
• Federal oversight in Pittsburgh was lifted in 2002, but the city agreed to maintain its provisions (however selectively).
• In 2004 the ACLU advised the chief’s office of six more unconstitutional regulations. These were settled out of court.
Twenty years ago I was extensively interviewed by Time Magazine about the Pittsburgh decree. This year the Pittsburgh FOP president was extensively interviewed by The New York Times. The lengthy articles both described the decree flaws, but did not report officer alienation, continued political influence and compromised enforcement. So why did both publications spend so much time to hear our best arguments? To deconstruct them in order to reconstruct their predetermined support of federal intervention? The public deserves to hear from their police on national issues of public safety and funding.
Meanwhile, back on planet Earth, every honest cop knows that corruption and racism exist, but nowadays determining when and to what degree often pits the rule of law against mob psychology. A few of the roughly 20 decrees in force around the nation have worked well. But that’s due to a lucky mix of levelheaded principal parties. The process itself depends on rigid, programmatic rules that are enforced, or not, by local politicians and their appointees who then exert more power over officers with punitive measures that end-run collective bargaining. Actual and perceived racism is often countered with repression of cops, which results in cultural stalemate — as in Baltimore now.
No level of government can “decree” ethical behavior or legislate morality. The goal should be to breed character into the hiring and promotion process. But how? Some alternatives:
• Since the 1970s, the New York Police Department has proven that reform permeates from the top down and that fundamental morality does not automatically come with rank. To date, Pittsburgh still chooses a command staff by direct political appointment. Some bad apples can still slip in and the good ones deserve more job security.
• To promote, some chiefs ask for a detailed plan to improve one of the department’s basic functions. The most promising plan is chosen by a police/civilian committee and its author given six months to exhibit the leadership to implement it. If successful, that officer goes to the top of the list.
• Some police departments require a four-year degree to apply. This ensures a level of competence and a socialization level far more broadly based than what a young adult experiences in a police academy. Extra points are also given for each year of graduate school and previous, unblemished police service.
• In the 1990s New Orleans faced epic police corruption. That chief rejected a consent decree and instead asked for a team of FBI agents to work with his most trusted detectives. Numerous felony arrests resulted and NOPD received $9 million in federal funds to help do the job. Good police work removed bad cops, as it should.
In September 2011, The Washington Post published a pro-decree report on Pittsburgh’s decree, quoting Mr. McNeilly: “It changed the culture of the entire organization. We became accountable.”
But in February 2014 Pittsburgh’s police chief, Nathan Harper, was sentenced to prison by a federal court upon conviction of charges related to public corruption.
Decree proponents have rationalized the aforementioned malfeasance, believing their end justifies the means — but not realizing that by the time they get to the end they have become the means. They have only proven that virtue is still the mask most often worn by corruption.
Official corruption in the name of reform is hardly new. By degrees, it alienates all cops, especially the most moral and legally savvy — the ones we need most.