WHY POLICING IS BROKEN
Years of research on brutality cases shows that bad incentives in politics and city bureaucracies are major drivers of police violence
YEARS AGO, while working on a story for Rolling Stone about why so few white-collar offenders went to jail, I realized I needed to better understand why the criminal-justice system worked with such monstrous efficiency to put poorer people in prison. What I thought would be a short detour to tackle that question ended up consuming five years, ending in two books about structural inequities in modern policing: The Divide, and I Can’t Breathe, the story of the brutal killing of Eric Garner on Staten Island.
There are obvious similarities between the Garner case and that of George Floyd. Both victims were African American men in their forties, grandfathers trying to put troubled pasts behind them. Both were approached over minor offenses.
In Floyd’s case, the issue was the alleged use of a counterfeit $20 bill. Garner was not even accused of that much. He was spotted standing on a corner the morning of July 17th, 2014, by a senior police official who sent two detectives back to the spot to, as police later phrased it, “address specific conditions . . . concerning the sale of illegal cigarettes.” I would later find out through my own reporting that Garner had not been selling cigarettes that morning, among other things, because he was ill.
Both Garner and Floyd died of asphyxia from being sat or knelt upon by police officers with long abuse histories. In both cases, numerous other officers and/or medical personnel refused to stop this clear abuse, or even administer aid long after the suspect had been subdued and stopped breathing.
Protesters today are asking what prompts such apparently senseless cruelty, wondering especially how it is possible that officers like Derek Chauvin in Minneapolis could continue kneeling on a defenseless man’s neck knowing he’s being filmed. He did so knowing that international protests erupted the last time police repeatedly ignored cries of “I can’t breathe” on video.
As I learned through years of talking to brutality victims and police alike, and by following cases like Garner’s through the courts, episodes like the Floyd killing happen thanks to a variety of interlocking bureaucratic and political imperatives. The individual racism of officers (and the structural racism underpinning police departments) is clearly a major part of the picture. But there are more immediately fixable problems at play as well. Here are four troubling logistical reasons these tragedies keep recurring:
Time Works Against Victims
even in the most appalling cases of police abuse or police homicide, media attention eventually dies down. After initial policy concessions or any number of other promises made in the heat of public anger, the system from there always reverts to form.
Once the press and protesters move on, a game of legal chicken often commences between victims and their families on the one hand, and the lawyers representing the cities or towns in question on the other. In this game, each day that passes without a conviction for police abuse or a financial settlement adds to the city’s leverage.
In one case I followed on Staten Island, police pulled an unarmed black man out of his car and stomped him until his ankle snapped in three places (he, too, cried “I can’t breathe” while struggling in a cop’s headlock). The victim had a clear case for a federal civil-rights lawsuit, but those legal battles are difficult to win if the victim is convicted of a crime stemming from the original problem arrest.
So police tend to hit those suspects with litanies of charges. In this instance, the man with the snapped ankle, who had been stopped for allegedly smoking weed in his car, was accused of menacing, criminal possession of marijuana, obstructing government administration (a catchall charge frequently added in New York cases), assault in the second degree, assault in the third degree, criminal possession of a weapon in the fourth degree, and two other charges.
It ended up taking 658 days for him to be cleared on all of those offenses. Only after all that time was he free to sue. Victims are often made to understand during these protracted battles that those long lists of charges — what one Baltimore resident described to me as “all that motherfucking paper they slide under the door” — might be dropped if the lawsuit threat goes away. In some places, before cases are dropped, defendants are asked to sign waivers giving up claims for “wrongful conduct” on the part of police. It’s a justice stalemate.
Even in instances severe enough to incur either a criminal charge or a grand-jury proceeding, prosecutors often have slow-walked cases, seeming to over-investigate. This stalls out the notoriously short attention span of the public.
In the grand jury investigation of Daniel Pantaleo, the officer in Garner’s case, prosecutors spent nine weeks hearing 50 witnesses before voting not to indict. Before Garner on Staten Island, there
was Ernest Sayon, another black man choked to death by police, in 1994. The grand jury took seven months and a hundred witnesses to decide not to press charges.
In the case of James Powell, the teenager whose shooting death caused New York City to explode in riots in 1964, the grand jury heard 45 witnesses give 1,600 pages of testimony — before voting not to indict. In the Ferguson, Missouri, case of officer Darren Wilson, a grand jury heard 60 witnesses over three months before tossing the case.
By the time these processes wind their way to completion, few but the immediate family members remember anything ever happened. Erica Garner, daughter of Eric Garner, put it to me this way: “People just get tired.” Erica died waiting to find out if the federal government would file civilrights charges in her father’s case. In fact, Attorney General Bill Barr declined to bring charges. Injustice has great stamina.
Abuse Records Are Secret
most police bureaucracies are structured in ways that allow officers to rack up long abuse histories. In the Floyd case, Derek Chauvin had 18 prior complaints filed against him. Pantaleo had 14 individual allegations of misconduct lodged against him and seven official disciplinary complaints, as well as past lawsuits. In the killing of Laquan McDonald in Chicago, officer Jason Van Dyke had at least 20 different civilian complaints against him, including one excessive-force accusation that cost the city $350,000 to settle. It came out in that case that as many as 402 officers in Chicago had 20 or more complaints on file, with one having a high of 68.
In part because police have strong unions, in part because politicians effectively lobby to prevent transparency, few states allow civilians free access to abuse records. In New York, section 50-a of the state’s civil-rights code long prohibited cities from releasing any “personnel records used to evaluate performance.” Essentially, even though the conduct of police is purely a public matter, some courts viewed records pertaining to job performance to be private and therefore protected. New York, in the wake of the Floyd case, just repealed the rule.
Still, in most jurisdictions, in fact, there’s little public record of abuse unless there’s a federal civil-rights lawsuit or a criminal indictment. Most remaining complaints are handled in-house, or through civilian-review boards, with action extremely rare.
After the Garner case, for instance, the police inspector general studied 1,048 chokehold complaints, and found only 10 that were “substantiated” by New York’s Civilian Complaint Review Board. Of those 10, none were disciplined seriously. In another study, in Chicago, analysts found that about one in 500 abuse complaints resulted in meaningful discipline.
Similarly, there’s no database of police whose false testimony (often called “test-a-lying”) has been tossed by judges. Informal networks of defense lawyers spread this knowledge of the police officers who exaggerate on the stand or make things up out of whole cloth — a typical lie might involve telling a judge you saw drugs on the “center console” of a car seat, or saw a gun in a waistband, anything to make a search legal — by word of mouth. But the public has no easy access to this information. Defense lawyers complain of not being entitled to access the abuse histories of cops involved in their own defendants’ arrests. This makes it very difficult to challenge false testimony, since courts and juries presume police are telling the truth in most cases.
Body cameras have changed things somewhat, and the Obama administration proposed a national database of problem officers, but the secret or quasisecret nature of abuse histories remains a pervasive problem, as evidenced in the Chauvin case.
‘Juking the Stats’
most major urban forces in America use one or the other variation on a strategy known as “Broken Windows” policing. This emphasizes the aggressive prosecution of minor offenses, ostensibly in an effort to discourage more serious offenses.
The statistical picture that this strategy aims for is a sharply increased number of engagements between police and the public over minor offenses, and over time, a lower number of felony arrests. For instance, New York went from having 187,385 misdemeanor arrests in 1994 to 292,219 in 2014. Meanwhile, the number of felony arrests during that same period dropped by 60,000.
Police administrators will cite causation: The aggressive policing of open-container violations, public urination, riding bikes on sidewalks, loitering-type offenses, and disorderly conduct supposedly creates a disincentive to more serious crime.
This mania for stats grew thanks to the advocacy of people like former New York NYPD commissioner Bill Bratton, who believed police needed to devise corporate-style “goal-setting” strategies to discourage what he called “drift” in police departments. Telling captains to meet quotas for stops, searches, and arrests allowed police administrators to quantify progress, in much the same way the Army in Vietnam quantified the progress of its occupation through “body counts.”
In practice, the stats revolution created an epidemic of what cops call “stat-massaging.” In the series The Wire, this was famously called “juking the stats,” a phenomenon that creates several major issues.
Police really do conduct tons of minor stops, searches, and misdemeanor busts — what cops I spoke with for I Can’t Breathe euphemistically called “activity.” At the peak of New York’s stop-and-frisk search program, police were stopping 680,000 people per year and issuing 600,000 summonses per year, with as many as 140,000 tickets just for drinking alcohol out of an open container. The “activity” is heavily targeted in certain neighborhoods. In 2012, a New York judge named Noach Dear remarked about open-container charges, “I cannot recall ever arraigning a white defendant for such a violation.”
Conversely, felonies were often downgraded to misdemeanors to create the appearance of progress against the more serious stuff. In I Can’t Breathe, an officer named Pedro Serrano — whose work taping a superior helped end the stop-andfrisk practice — described an incident in which someone reached through the window of a home and stole liquor out of a cabinet.
“It’s a burglary,” he said. “A felony. A bullshit felony, but a felony.” But his supervisor [ Cont. on 94]
told him not to write up the incident, to suppress the numbers of serious crime incidents on his beat. Meanwhile, New York officers were given “20 and one” monthly quotas — 20 summonses, one arrest. In this way, felonies decreased, but stops and searches multiplied.
This sent a two-pronged message to neighborhoods everywhere that the police were not there to address the citizens’ most serious problems and were only there to hassle them endlessly over minor issues.
Worse, the aggressive strategies increased the number of contacts between police and civilians. These contacts often had an explicit physical component. The essence of stop-and-frisk — a search program born out of a 1968 Supreme Court case called Terry v. Ohio — was that police could put their hands on anyone they had a “reasonable” or “articulable” suspicion was about to commit a crime.
Once police departments began asking patrol officers to fulfill quotas of such “Terry stops,” cities everywhere saw massive, artificial increases in the number of physical confrontations between police and citizens, most of them minorities. It was statistically inevitable that some of these confrontations would go sideways. In this very direct way, the implementation of theory led to deaths and beatings that otherwise would not have happened.
Although stop-and-frisk was struck down in court by Shira Scheindlin, a woman Donald Trump once described as a “very against-police judge,” stats still rule policing. Commanders in many cities have to regularly explain their statistical picture to superiors. This motivates higher-ranking officers to send street-level cops to go looking for easy busts, which might be why a man like George Floyd, accused of passing a bad $20 bill, was arrested in a multi-officer showdown that looked like the capture of John Dillinger.
The same dynamic was in place with the 350pound, diabetes-stricken Garner, who friends described as the most bustable man on Staten Island. “Eric,” one friend told me, “couldn’t run from shit.” In the era of modern policing, officers are motivated to hit this kind of minor suspect harder.
For all that, the public’s trust in police remains sky-high. Last year, the regular Gallup study of confidence in institutions showed police have retained a “great deal” of support by the same 53 percent of the country since 2014, the year of Garner’s killing, and an additional 31 percent had “some” confidence. The only other major American institutions that enjoy more confidence are the military (73 percent had a “great deal/quite a lot” of confidence) and small business (68 percent). Meanwhile, the numbers for Congress (11 percent), TV news (18 percent), HMOs (19 percent), organized religion (29 percent), big business (23 percent), and banks (30 percent, down from 53 percent in 2004) have seen declines.
Even after the Floyd killing, an Ipsos poll showed 69 percent of Americans said they trust the police, reflecting a dynamic that politicians in both parties have understood for ages. No matter how much more people might understand about the mistreatment of minorities by the system, or how much outrage there might be about brutality incidents in the moment, “law and order” politicians always win votes in the next election. Trump courted these sentiments, declaring in 2016, “I am the law-and-order candidate.”
The prison population in America has grown by 700 percent since 1970, owing to a series of factors that collectively produced a revolution in policing, transforming it from a reactive force that saw solving serious reported crime as its main mission to a more proactive body charged with enforcing the more amorphous concept of “order.”
The new high-engagement, statistics-based strategies were boosted by a series of reforms instituted in the early Seventies that had wide partisan support. New York’s Republican governor, Nelson Rockefeller, was actually one of the first advocates for voluntary treatment instead of prison for drug addicts, but as governor, he ended up instituting draconian punishments for nonviolent drug offenses that would become the model for the entire country.
An effort to keep pace with demand for prison beds created by these new laws pushed New York governor and liberal icon Mario Cuomo to enact a pioneering program of mass prison construction, using monies earmarked for job development in inner cities to pay for new penitentiaries in mostly white communities upstate. Meanwhile, at the city level, “Broken Windows” or “zero tolerance” policing got its start under Mayor Ed Koch in New York and reached its nadir in Baltimore, when in 2005, Mayor Martin O’Malley oversaw the arrest of one out of every six city residents — 100,000 busts in a city of 640,000 people.
Yes, these programs were advanced by Republicans and sort-of Republicans like Rudy Giuliani and Mike Bloomberg, and police have always had the backing of “throw away the key”-type Republicans like Tom Cotton (who opposed even Donald Trump’s proposal to curb mandatory sentences) and Jeff Sessions, who as a federal prosecutor in the Eighties built a reputation for long sentences in drug cases, going so far as to support the death penalty for opioid traffickers as Trump’s attorney general.
But in big cities, the dynamic is always the same. While police reform is popular in some neighborhoods, upscale white voters and business leaders — especially real estate developers, who are usually the city’s most influential donors — will back any politician who promises to use police aggressively to protect property and commerce.
Moreover, wealthy interests have long funneled cash to police through private groups such as the Police Foundation, which has received big donations from the likes of Barclays Capital, JPMorgan Chase, and the United Arab Emirates. Current and former members include BlackRock CEO Larry Fink, developer Benjamin Winter, New England Patriots owner Robert Kraft, and Ivanka Trump.
Commissioners use the millions raised for these foundations to hand out tribute jobs to cronies and fund “studies” recommending improvements or expansions of police capability. One police source told the New York Post years ago that such foundations were a “piggy bank” commissioners used to create “almost a shadow government” inside the NYPD. Private-foundation money supplements cash-strapped municipal governments, helping fund everything from body cameras to bulletproof vests to counterterrorism databases and explosive-detection dogs.
That’s a lot of financial firepower, and one reason even politicians who run on police reform often move to build bridges with police advocates after entering office. Bill de Blasio in New York is a classic example. He ran for mayor in 2013 on a promise to be “the only candidate to end the stop-and-frisk era,” then immediately chose as his first police commissioner Bratton, the father of stop-and-frisk. As Los Angeles Mayor Eric Garcetti put it, as a mayor, “you better have the backs of your police officers.”
Those who want to reform the police have to understand this dynamic: No matter how much influence protesters may seem to have in the moment, politicians in the end will fall back upon familiar strategies for governance. Even relatively recent history shows voters back law-and-order candidates, even in traditionally liberal jurisdictions, from Giuliani and Bloomberg in New York, and Gavin Newsom in San Francisco, to O’Malley, whose recordbreaking regime of arrests in 2005 propelled him to the Maryland governor’s seat the next year, when he ran on a claim that he’d reduced crime in Baltimore by 37 percent.
I met a lot of police officers researching this issue. Plenty of jerks, but many went into the job for good reasons. They had seen police shows like Law & Order and Columbo and movies like Serpico growing up, and dreamed of being heroes who caught killers, rescued the injured, protected women and children. Others, like Pedro Serrano, were themselves victims of racist profiling while growing up, and joined the force to help change it. Many say they want to do a very difficult job the right way, and would welcome reform, but find themselves stymied by bureaucratic imperatives they say cast police in the roles of harassers and occupiers, working alongside known problem officers the system refuses to discipline.
A reimagined police force that allowed officers to focus on serious crime would allow better officers to rise through the ranks and teach a new generation how to do the job in a smarter, more humane way. The current strategy turns policing into a physically intrusive, military-style endeavor, with artificially high numbers of tense confrontations. Ending those strategies could have dramatic positive consequences.
Even in the poorest neighborhoods, residents have conflicting views about police. There is deep anger, but also a desire for the same level of protection people in wealthier neighborhoods take for granted. Polls sometimes show a desire for more police, not fewer: That may not be the case with the defund movement, but improvements would surely be welcomed in any case. Changing the hearts of bad officers is a project for the ages. Changing the job is something that can be done for people now.