by Matt Clarke
Police misconduct takes on many forms, from unjustified violence, murder, torture, sexual assault, theft of evidence—usually cash or drugs—and extortion, to actively assisting or participating in organized crime. However, this article will focus on a narrow segment of the many-faceted police misconduct problem—misconduct that leads to wrongful convictions.
This includes everything from withholding exculpatory evidence all the way to planting evidence and inventing fictitious crimes. The misconduct might be the result of laziness or have a more sinister intent. Either way, police officials rarely pay for their misdeeds. The same cannot be said about their victims, who often pay with years or even decades of their lives, or, sadly, with their very lives. Thus, the issue of wrongful convictions caused by police misconduct is literally a matter of life and death.
However, in discussing police misconduct that results in wrongful convictions, one faces a notable lack of statistics. Police departments are more than willing to maintain statistical databases that tell you who committed what crimes—broken down by race, ethnic group, age, ZIP code, economic class, educational status, and many other factors. But ask them how many crimes the police themselves commit, and you’ll likely get a blank stare. It’s as if they think something that’s not tracked hasn’t and doesn’t occur.
A case in point occurred when the International Association of Chiefs of Police attempted to launch a database to track data on allegations of police misconduct. The association sent a survey asking for information on citizens’ allegations of excessive use of force by their own officers to over 18,000 state, county, and local police agencies. Fewer than 150 responded—a response rate of about 0.8%. The attitude of the over 99 percent of law enforcement agencies that failed to respond was apparently that they didn’t want that information in the public domain, or they didn’t consider the issue important enough to merit a response.
Statistics on wrongful convictions have equally serious problems. Many of them only include those exonerated by DNA evidence—a type of evidence often absent in cases involving police misconduct cases. This may be because the advent of DNA testing technology in the late 1980s provided the first opportunity to definitively and scientifically prove a person who had been convicted of a heinous crime such as rape was actually and factually innocent.
Perhaps it was the ability of DNA evidence to prove a person was factually innocent that led to the second problem with wrongful conviction statistics: an intentional exclusion from the exoneration statistics and databases of group exonerations because of police misconduct.
For instance, the National Registry of Exonerations (“NRE”) does not list group exonerations among the 2,161 it records as occurring between 1989 and the end of 2017. A recent NRE report discusses 15 group exonerations that occurred within that time frame and resulted in the exoneration of over 1,110 people, but the NRE does not list them or any other group exonerations in the registry.
The reason the NRE gives for this omission is that it is impossible to determine whether some of the individual cases that were part of group exonerations did not involve people who were actually guilty of having committed some crime. The NRE’s position is that the greater amount of information generated in individual cases that resulted in exonerations makes it possible to determine that the defendant was factually innocent and only the provably factually innocentshould be included among the exonerated. The NRE is not alone in making this distinction.
This approach skews the statistics generated by organizations interested in wrongful convictions and seriously under-reports the number of wrongful convictions and the role of police misconduct in causing wrongful convictions. For instance, one study by Samuel R. Gross and Michael Shaffer reported on 340 exonerations occurring between 1989 and 2003. It showed eyewitness misidentification as the leading cause of wrongful convictions. Factoring in the 75 wrongful convictions from group exonerations in which the defendant was provably factually innocent, which occurred during that time period, changes the leading cause of wrongful convictions to police perjury. That’s because police perjury was the cause of every one of the 75 factually innocent group exonerations. Adding the nearly 80 percent of factually innocent group exonerees who pleaded guilty to the 6 percent of DNA-exonerees who entered a guilty plea greatly increases the percentage of wrongfully convicted defendants who pleaded guilty.
The reason for the discrepancy in the percentage of guilty pleas reveals another problem with focusing exclusively on DNA exonerations—overly narrow selection. Most DNA exonerations occur in murder or sex cases after the defendant has spent many years in prison. It is obvious that an innocent person is much less likely to plead guilty to such a serious charge than to the drug possession charges that are typical of group exonerations. The trend is exacerbated by group exoneration defendants who saw the first few defendants who pleaded not guilty receive extremely harsh sentences. That was the case in Tulia, Texas, where the factually innocent defendants who pleaded not guilty received an average sentence of 51.3 years, almost 13 times the four-year average sentence received by those who pleaded guilty.
Another reason not to automatically exclude all group exonerations is that there may well be evidence of factual innocence. In the study “Police Misconduct as a Cause of Wrongful Convictions” by Russell Covey published in the Washington Law Review, it was determined that the 37 Tulia group exonerees were factually innocent based upon information available in the court records. Thus, the exclusion of the Tulia exonerees from the exoneration databases and studies evidences a bias against group exonerations that is not based on provable factual innocence but simply a prejudice in favor of DNA evidence.
There is also a second selection bias encountered when focusing on DNA exonerations—DNA evidence is only relevant to a tiny percentage of the overall crimes prosecuted. Although this is becoming less true as forensic scientists perfect techniques using tiny amounts of DNA, most DNA exonerations involve the large amounts of DNA found in blood, semen, and the cells present in vaginal fluid. This limits most DNA exonerations to cases of murder and sex offenses. Together, they make up only a tiny sliver of all criminal convictions and thus are not representative of wrongful convictions overall.
The bias to select only the provably factually innocent cases for inclusion in the exoneration databases turns the American system of justice on its head, requiring those who have been wrongfully convicted to prove their innocence rather than requiring the government to prove their guilt beyond a reasonable doubt.
Further, distinguishing cases in which, for instance, the police lie about a defendant having dropped drugs on the ground when they were actually discovered in a pants pocket during an unlawful search from one in which the police simply plant drugs on a person they suspect of criminal activity tacitly condones the former conduct, which breeds the latter conduct and leads to wrongful convictions of the factually innocent. It also refocuses attention from the wrongdoing of the police to the alleged crimes of the defendant while requiring the exoneree to disprove allegations made by the very police whose misconduct resulted in the wrongful conviction. In short, exoneration databases should include information on all wrongful convictions, not a select few who can be proven factually innocent.
Statistics on Overall Police Misconduct
A study by the Cato Institute’s National Police Misconduct Reporting Project showed that, in any given year, around 1 percent of all police officers engage in misconduct. This seems like a low rate until one considers that a study by the Wisconsin Innocence Project showed that police misconduct was a factor in up to 50 percent of all DNA-based exonerations.
A study by Adam Dunn and Patrick J. Caceres published in Policy Matter attempted to establish a better estimate of police misconduct rates using local agency data and community surveys in Oakland, California. The report noted that the National Police Misconduct Statistics and Reporting Project (“NPMSRP”)—a nonprofit that uses media reports to generate its statistics—showed an average police misconduct rate of 0.2 incidents per 10,000 U.S. citizens; the study concluded the actual rate was much greater. However, based on its breakdown for Oakland, a rate of 1.1 per 10,000 Oakland citizens was indicated.
The study used Oakland Citizens Police Review Board (“OCPRB”) complaints to determine that the rate was 2.6 allegations of police misconduct per 10,000 Oakland citizens, racially broken down to a rate of 5.3 for blacks, 1.3 for whites, and 1.1 for all others.
The 2005 City of Oakland Survey on Police Services and the Filing of Complaints showed that 32 percent of residents reported a negative police experience, with most of them qualifying it as very negative, but only 11 percent filed a formal report.
All of this, combined with limited statistics from the U.S. Department of Justice’s Bureau of Justice Statistics, suggests that the NPMSRP was underestimating the actual rate of police misconduct by two to 20 times. Using the OCPRB complaints normalized by the city’s survey suggests a maximum police misconduct rate of 23.4 per 10,000 residents, broken down racially to 13.3 for whites; 35.2 for blacks, and 19.2 for others.
A study titled, “Police Integrity Lost: A Study of Law Enforcement Officers Arrested,” funded by a grant from the U.S. Department of Justice, used media reports and court records to show that there were at least 6,724 arrests involving 5,545 state and local law enforcement officers between 2005 and 2011. The officers were employed by 2,529 different agencies in 1,205 counties in all 50 states and the District of Columbia. This represents an arrest rate of 0.72 per 1,000 officers or 1.7 police arrests per 100,000 U.S. residents.
The most common arrest charges break down to 13 percent for simple assault, 12.5 percent for DWI, 8.5 percent for aggravated assault, 5.2 percent for forcible fondling, and 4.8 percent for forcible rape. About half of the sex crime victims were children. Officers lost their jobs in 54 percent of the cases. A cross-check with civil rights complaints filed against the officers prior to the incident that led to their arrest showed they often were accused of civil rights violations for years prior to the incident that led to their arrest.
A continuation of the study released in 2016 showed that around 1,100 police officers, 95 percent of them men, are arrested each year, with 42 percent of them for crimes committed while on duty. Many of the off-duty crimes are nonetheless committed under color of law, for example by flashing a badge or asserting police authority. Seventy-two percent are convicted. Twenty-two percent had previously been a defendant in a civil rights lawsuit.
The highest arrest rates were in New Orleans (44.21 per 1,000 police officers), Milwaukee (36.74), Memphis (29.7), New Mexico State Police (24.62), and Pittsburgh (23.57). The study noted that the arrest rate was depressed by the “professional courtesy” shown police officers that gives them a free pass from arrest for most misdemeanors and even some felonies. Unfortunately, the study does not correlate police arrests with wrongful convictions. Thus, the scope of the problem of police misconduct contributing to wrongful convictions remains largely unknown.
Racial Bias in Police Misconduct Wrongful Convictions
Besides finding that police misconduct was the most frequent cause of wrongful convictions, Covey’s study also noted that the misconduct that resulted in group exonerations most often was directed against the poor and minorities. For instance, in Tulia, Texas, former police undercover officer Tom Coleman managed to manufacture drug possession and sales cases against approximately 20 percent of the town’s black population. Likewise, in the infamous 156-person group exoneration involving the Los Angeles Police Department’s Rampart Division, the overwhelming majority of the exonerees were Hispanic.
Numerous cases against blacks in Hearne, Texas, were dismissed in 2001 after an investigation revealed that the drug task force was using false charges in an attempt to drive black residents out of town. In Dallas, Texas, at least 39 cases against working-class Mexican immigrants who spoke little or no English were dropped or dismissed after it was discovered that the white powder police planted on them was ground-up Sheetrock, not the cocaine they alleged.
Similarly, over 200 mostly poor black people had convictions vacated or charges dismissed in Camden, New Jersey, due to misconduct by at least five police officers. In Tulsa, Oklahoma, five police officers have been charged with at least 58 counts of perjury and witness tampering, which have resulted in 11 prisoners being released with more cases in review. Again, most of the victims of the police perjury were poor and black.
Chicago is still dealing with the decades-long legacy of Jon Burge, a police officer who rose to the rank of commander after decades of torturing and framing poor black residents. The city has paid out tens of millions of dollars to Burge’s victims, continued to resist victims’ lawsuits, and defended Burge in civil court even after he was fired in 1996. He was convicted on federal perjury and obstruction of justice charges related to one of the lawsuits filed by his victims in 2010. He was sentenced to 54 months in prison but served only three years. Over 110 men whose torture by beatings, suffocation, and electric shocks were associated with Burge have been identified. Tortured confessions were the basis for numerous exonerations, including at least four from Illinois’ death row.
Sadly, the Chicago Police Department did not learn anything from the Burge case. The 2018 murder conviction of former police officer Jason Van Dyke for fatally shooting retreating black teenager Laquan McDonald revealed a department that still condones police perjury and “fudging” or “shading” of police reports while it intimidates judges and prosecutors into accepting the officers’ bad behavior.
That “shading” or “fudging” can rise to the level of falsifying charges as shown by the September 24, 2018, group exoneration of 18 drug case defendants who had been framed by Sgt. Ronald Watts and his tactical team. The convictions of 15 others were overturned in 2017—the same year that 15 of Watts’s subordinates were demoted to desk duty. The total number of
Watts-related exonerees now stands at 42.
“We continue to hear that many of these arrests were purely conjured,” said Mark Rotert, who headed the State Attorney’s Conviction Integrity Unit in Chicago. “They were basically arresting people and framing them or were claiming that they were involved in drug offenses that either didn’t occur or didn’t occur the way that those police officers said.”
A federal investigation of the Baltimore Police Department’s Gun Trace Task Force resulted in guilty pleas by at least four detectives and one sergeant as well as the jury conviction of two other detectives—all on federal charges relating to theft, robbery, and falsifying search warrant affidavits. One former detective admitted to committing felonies on duty for nearly a decade, while another described the Gun Trace Task Force as having officers carefully selected so that it could operate as a “front for a criminal enterprise.”
Task Force Misconduct
A typical tactic of the Gun Trace Task Force was to drive fast at a group of people—usually blacks in a poor neighborhood—slam on the brakes and throw open the doors, then chase anyone who ran. This maneuver was performed without any suspicion of criminal activity, and it happened up to 50 times each night. Those who ran, and often those who did not run, were searched and arrested if guns or drugs were found. They also pulled over Honda Accords, Acura TLs, and Honda Odysseys without any suspicion of criminal activity because those were considered to be “dope boy cars.” They would falsify an infraction to justify the stop. Often they would tell the people they stopped they were federal agents and take any money or drugs they found but let the people go saying they weren’t the subject of the federal investigation.
According to Gun Trace Task Force Sgt. Wayne Jenkins, who, along with detectives Maurice Ward, Jermell Rayam, and Evodio Hendrix, pleaded guilty to federal charges related to racketeering, robbery, and other charges, they would ask suspected drug dealers who the biggest drug dealer in town was, so they could rob that person.
Jenkins, Ward, and others testified at the federal criminal trial that resulted in the conviction of former detectives Daniel Hersl and Marcus Taylor. More than 80 convictions have been overturned due to Gun Trace Task Force misconduct, and still more are being investigated.
In the early 1990s, systematic perjury became so common in the New York Police Department, officers started referring to court appearances as “testilying.” Defense lawyers complained about the prevalence of police perjury for years, but police supervisors, prosecutors, and judges ignored their complaints, giving their tacit approval to the practice. No supervisor was ever sanctioned for permitting perjury or falsification on their watch.
A special investigation by the city’s Mollen Commission concluded that, between 1986 and 1994, one-sixth of all 13th Precinct officers routinely robbed drug dealers, fabricated evidence, committed perjury, and engaged in other crimes while on duty. The scandal led to the reversal of 125 convictions against 98 individuals, but insiders estimated police perjury had tainted over 2,000 convictions. One officer alone admitted committing perjury in 75 separate criminal trials. Thirty-three officers were convicted, and the city paid millions in reparations.
The Mollen Commission criticized a practice known as “Collars for Dollars,” whereby police officers received overtime pay, promotions, and bonuses based on the number of arrests they made, not whether they were justified.
In July 2018, former Village of Biscayne Park, Florida, police officer Guillermo Ravelo, then 37, pleaded guilty to federal charges related to his arresting and falsely charging one man with two residential burglaries and another man with five vehicular burglaries. Both Ravelo and his supervisor knew that there was no evidence linking the men to the burglaries. He faces up to 10 years in prison, three years of supervised release, and a $250,000 fine. His case shows that even small towns are not immune to this kind of police misconduct—or having to pay for its consequences.
The Problems With Police Departments
Just as systemic problems were revealed more recently in Chicago and Baltimore and earlier in Los Angeles and New York, the fatal shooting of unarmed black teenager Bobby Moore, 15, by police officer Josh Hastings in 2012 showed that the police department in Little Rock, Arkansas, suffered from a systemic rot. This failure of the system allowed Hastings, the son of a prominent police official, to be hired despite having lied on his application about having attended at least one Klu Klux Klan rally, to be trained by officers who themselves had lengthy disciplinary records, to retain his job despite having a lengthy disciplinary record of his own, and using racist expressions. Systems like this lead to police misconduct, and the lack of disciplinary consequences leads police to believe that they can get away with anything, from fabricating evidence and charges to unjustified lethal use of force.
That is the pattern to the problem of widespread police misconduct regardless of where it occurs. It can only happen if fellow officers join it or at least turn a blind eye to it, and supervisors ignore it. At times, it can become so widespread that prosecutors and judges are intimidated by the police. That happened in the Chicago Police Department of Jon Burge, but it went even further, with prosecutors joining in on interrogations using torture to obtain often false confession from poor black suspects. Although police are rarely prosecuted for their misconduct, prosecutors are almost never prosecuted for joining in or tacitly condoning it.
These problems are exacerbated by the legal protections afforded the police. Maryland has a Law Enforcement Officers’ Bill of Rights (“LEOBoR”), which grants officers rights that are denied ordinary citizens. These include, following an event that might lead to disciplinary action, the right not to be forced to make a statement about the event for 10 days, mandatory notification of the officer and the officer’s union regarding potential charges, a guarantee that interrogators not “harass, threaten, or promise rewards to the officer,” assured bathroom breaks during interrogation, a time limit for discipline following the alleged misconduct (often 100 days), payment of salary, benefits and attorney fees while on suspension, and a right of appeal to a three-member “hearing board” whose decision is binding even before the officer’s superiors decide about the discipline and one member of which the officer can select.
Maryland is not alone. Thirteen other states have LEOBoRs. They tend to make the investigations of misconduct so time-consuming and cumbersome that many departments simply opt not to do so. Since most allegations of police misconduct are initially investigated internally by the officer’s own department, LEOBoRs effectively shield bad officers from internal review. Former Baltimore Mayor Stephanie Rawlings-Blake cited the LEOBoR as the reason that city officials could not fully engage with the officers involved in alleged misconduct related to the death of Freddie Gray.
Law enforcement accountability expert Samuel Walker’s research focuses on the Maryland LEOBoR. He calls it a “special layer of due process” that “impedes accountability and is a key element of our lack of responsiveness to” cases of apparent excessive use of force, adding that it is a scandal that no one discussing excessive use of force is talking about the LEOBoR.
Columbia Law School policing expert Jeffrey Fagan questions why police feel they need additional and special consideration: “They want better treatment than other criminal defendants? They already have 95 percent of civil-rights law on their side, starting with qualified immunity.”
Attorney Peter Neufeld, who was part of the team that won an $8.75 million award in the infamous Abner Louima case, fought a LEOBoR rule that required investigators to wait 48 hours before questioning the police officers involved in the shooting. He said it “allows these officers to wait until the forensics come in before constructing a narrative.” Noting that, earlier questioning “wouldn’t get many cops who would confess. But you would get some who’d make false exculpatory statements, and that’s a big deal.” Clearly, police should not be given special due process rights that aren’t enjoyed by other citizens.
Police Interrogation Techniques Causing False Confessions
An NRE study of the 139 exonerations in 2017 showed exonerees spent an average of 10.7 years in prison prior to exoneration and concealing exculpatory evidence was the most common police misconduct. Ninety-eight of the exonerations were for violent felonies, 84 involved misconduct by government officials, eight involved perjury or false accusation, 66 were for crimes that did not actually occur, and 29 included false confessions. Noted, but not included in the NRE, were additional exonerees from group exonerations in 2017—96 from Chicago and over 80 from Baltimore.
Torturing a suspect to sign a confession, as happened to hundreds of black men in Chicago, is an obvious and felonious act of police misconduct. Less obvious is when police use deceitful techniques that have been sanctioned by the courts, relying on their lies rather than their brutality to elicit a confession. However, just like brutality, deceit can yield false confessions by innocent people.
For decades, police have been trained to use the Reid technique when interrogating suspects. Although it has been somewhat discredited in recent years, it is still the primary method of interrogation for police around the country. The Reid technique involves lying to suspects in an attempt to induce a feeling of hopelessness. Anything a suspect says about innocence is immediately discredited, and police claim to have overwhelming evidence of guilt. In a ploy called “the bluff,” which is considered to be less deceptive, investigators claim to have abundant evidence but not whether it proves the suspect’s guilt or not. An example of this would be a false claim that DNA evidence was recovered from the crime scene and will definitively prove who the perpetrator of the crime was, but it has not yet been tested.
A study by Jennifer T. Perillo and Saul M. Kassin published in Law and Human Behavior investigated the results obtained using the Reid technique and the bluff ploy. The motivation for the investigation was to find out why a quarter of the DNA-based exonerees had made false confessions. In a controlled study involving blame for crashing a computer, 27 percent signed a false confession to hitting a key that caused a computer to crash without coercion. Falsely claiming there was evidence of guilt caused the percentage of innocent participants to sign a confession that they crashed the computer to increase to 79 percent. This was a test of the Reid technique. Claiming there was a keystroke register that could be accessed at a later time, a test of the bluff ploy, caused 87 percent to give false confessions.
Equally interesting is the fact that the introduction of false evidence of guilt caused the percentage of participants who actually believed they hit a key that caused the computer to crash when they did not to increase from 12 percent to 55 percent. This explains why some innocent people being interrogated under the Reid technique actually began to think they might have committed the crime.
Subjects of the experiment who confessed when the bluff ploy was used explained that they knew they would be exonerated later when the keystroke register was consulted. This is similar to what some people who were exonerated of crimes said about why they falsely confessed after police falsely claimed they had DNA evidence that had not yet been tested. They were convinced that the nonexistent DNA evidence would exonerate them, so the confession did not matter, and giving it would end the onerous interrogation.
This study calls into question the wisdom of using the Reid technique and the bluff ploy, both of which are based on deceit. However, both methods are quite legal and have withstood numerous court challenges. Nonetheless, they represent the slippery slope of using deceit to obtain confessions that can lead police to believe any method is permissible, even planting evidence and physically abusing suspects, so long as a confession is obtained in the end. Police departments and courts should put an end to the use of the Reid technique and all other forms of deceit when interrogating suspects in criminal cases.
An Innocence Project investigation of false confessions made by people who were later exonerated using DNA evidence showed that real or perceived police intimidation, real or perceived threats of violence, compromised reasoning ability (due to exhaustion, stress, fear, hunger, substance use, youth, mental limitations, or limited education), devious interrogation techniques—especially claims of incriminating evidence—and fear of receiving greater punishment if no confession was forthcoming were the reasons innocent people signed false confessions.
The Role of Police Organizations and Culture in Police Misconduct
One problem encountered when addressing police misconduct is the insular culture the police often call the “Brotherhood in Blue” or the “Thin Blue Line.” This us-against-them attitude causes police to circle the wagons when faced with outside criticism. It also creates a bias toward denying misconduct by fellow officers unless overwhelming proof is evident and made public, then dismissing their misconduct as accidental or rouge actions, both of which absolve the police organization and culture from responsibility. Numerous studies have shown that organizations, which set the tone of the work culture, bear significant responsibility for police misconduct. However, successfully averting blame gives the organization no incentive to change, effectively institutionalizes the policies, practices, and culture that led to misconduct in the first place.
Studies of the Los Angeles, New York, Chicago, and other police departments following police misconduct scandals have shown that they had many organizational and cultural factors in common that promoted, or at least failed to discourage, police misconduct. These included a practice of confrontational policing, an evaluation and promotion system that had the functional effect of rewarding illegal uses of force through non-enforcement of stated management policies, and a work environment that tolerated—or even encouraged—violent and discriminatory conduct. All of this leads to a police department which, regardless of formal policies, gives an informal, cultural message that confrontational, aggressive policing will be rewarded even if it results in repeated incidents of violence that lead to citizen complaints and lawsuits.
What can be done to improve police organizations and culture? Studies have shown that the personality tests administered to prospective police officers are ineffective at spotting bad police officers. This indicates that it is not feasible to intercept all bad officers before they are hired.
The Christopher Commission, which investigated the Los Angeles Police Department (“LAPD”) after the 1992 Rodney King beating, determined that a small number of oﬃcers were responsible for the large majority of police misconduct. The department of about 8,450 officers saw about 1,800 officers accused “of excessive force or improper tactics” between 1986 and 1990. Of the oﬃcers involved in a use of force that led to an allegation of excessive force, 1,400 had one or two allegations of excessive use of force, 183 had at least four such allegations, 44 had at least six, 16 had eight or more, and one had 16. The 44 oﬃcers with the most excessive force allegations were involved in use of force an average of 13 times, had an average of 7.6 complaints of excessive force, and 6.5 other complaints. That compares with 4.2 use of force, 0.6 complaints of excess force, and 1.9 other complaints for all oﬃcers who reported using force. This indicates that removing a small percentage of ofﬁcers could greatly reduce the allegations of excessive use of force.
The same study found that the internal electronic messages of the officers who were involved in the Rodney King beating included “an appreciable number of disturbing and racist remarks,” and many had “unacceptable and improper attitude[s] regarding use of force.” This suggests that monitoring the internal electronic message traffic could help identify problem officers before they engage in unjustified violence. This could allow departments to counsel and monitor such potentially problem police, perhaps preventing future misconduct. Such an intervention would also signal to police officers that misconduct will not be tolerated and thus discourage misconduct.
The Role of Courts in Addressing Police Misconduct
Although there are many federal civil rights lawsuits filed against police departments and frequent monetary awards, one rarely hears of an injunction against a police department. That is because the Supreme Court, in Los Angeles v. Lyons, 461 U.S. 95 (1983), made it difficult, if not impossible to obtain such an injunction. Adolph Lyons sued the LAPD for an officer’s use of a dangerous and potentially fatal chokehold on him that was permitted under policy and had already resulted in multiple deaths. Among other things, he sought an injunction prohibiting the LAPD from using chokeholds, pending the implementation of training on safer holds and regulations prohibiting chokeholds. The Supreme Court essentially held that, to justify the injunction, Lyons would have to prove that a chokehold would be used against him in the future, a virtually impossible task.
Monetary awards, even very large ones, are ineffective at forcing police reform. The reason is because the money is paid by the taxpayers and almost never comes out of the police department budget or the finances of the individual police officer defendants. Since the police departments usually absolved themselves by labeling the misconduct as accidental or having been committed by rouge officers or in a fit of pique, they see no reason to reform.
Lyons effectively ended the usefulness of civil rights actions in engendering police reform. In 1994, Congress reacted to the Lyons decision by enacting 42 U.S.C. § 14141, which empowers the U.S. Attorney General, if there is “reasonable cause to believe” law enforcement officers have engaged in “a pattern or practice” of civil rights violations, to file a civil action for injunctive or declaratory relief. This is a partial restoration of the power of civil actions to force police reform, but it takes the ability to initiate the action out of the hands of the people suffering from police misconduct and places it in the hands of a federal government official. The weakness in that approach is aptly demonstrated by the current administration’s clear signaling of a hands-off policy toward regulating police behavior. Sadly, this means that the courts are currently ineffective at forcing police reform.
The Financial Burden of Police Misconduct
The real cost of police misconduct is to its victims—the falsely accused who often spend tremendous amounts of time, money, and energy defending their case often only to end up spending years in prison. The additional victims are of the criminals who are left on the street because the police were too lazy, sloppy, or busy framing the innocent to catch the real offenders. But there is also a severe financial cost to police misconduct for which the taxpayers must foot the sometimes astronomical bill.
According to the Chicago Sun-Times, between 2004 and 2014, Chicago paid $521 million to victims of police brutality. About 15 percent of those payments went to Burge’s victims. During the same time period, the Cleveland Plain Dealer reported that Cleveland paid $8.2 million to over 60 police misconduct victims.
Between 2006 and 2011, New York City paid settlements and judgments totaling $348 million in 6,113 civil rights lawsuits against police, according to a study published in the NYU Law Review.
Between 2005 and 2015, Boston paid $36 million to resolve over 2,000 legal claims and lawsuits against its police department, mostly to exonerees, according to the Boston Globe. Twenty-two of the cases accounted for $31 million of the payments.
In a Baltimore Sun news feature, Dallas is listed as having paid $6.6 million to victims of police misconduct between 2011 and 2014. The Colorado Independent reported that Denver paid about $12 million to victims of police brutality between 2011 and 2015. The Huffington Post used data from the Los Angeles Times to estimate the payout to victims of LAPD misconduct between 2002 and 2011 at around $101 million.
Minnesota Public Radio pegged Minneapolis as having paid out $9.3 million to resolve police misconduct lawsuits between 2011 and 2014. An analysis by Oakland Police Beat concluded that Oakland paid $74 million in at least 417 lawsuits alleging police misconduct between 1990 and 2014.
The investigative website MuckRock reported that Philadelphia spent around $40 million in police misconduct settlements between 2009 and 2014. Over $13 million was paid to settle 29 lawsuits over police shootings, including two separate $2.5 million settlements.
Those 10 cities paid a combined average of $91.3 million each year in settlements, awards, and claims resulting from police misconduct. New York City alone accounted for 64 percent of the payouts. Those fiscal resources could have been put to much better use, serving the citizens of those cities rather than providing inadequate compensation to victims of police misconduct. That is another reason why police misconduct should not be tolerated, tacitly or otherwise. But police departments must go beyond prohibiting abusive conduct “on paper.” They must monitor their officers and take proactive corrective action against officers who show racist or violent attitudes and beliefs before their thoughts become actions directed against the very citizens they are sworn to protect.
Victims: The True Cost of Police Misconduct
The number of known victims of police misconduct measures in the thousands and cannot all be addressed individually. However, the history of a few victims can illustrate the common experiences all have had and show the varieties of police misconduct conducive to convicting the innocent.
It is easy to see how police misconduct resulted in Jose Maysonet’s 1995 murder conviction in Chicago. Investigations revealed that police detective Reynaldo Guevara orchestrated a 17-hour marathon interrogation that included beating him with fists, a telephone book, and a flashlight and ended only when Maysonet confessed. Maysonet said Guevara squeezed his testicles so hard he screamed in pain and urinated on himself. In 2017, Maysonet became the eleventh of Guevara’s victims to be exonerated.
Another of Guevara’s victims, Robert Bouto, was a teenager when he was convicted of a fatal shooting. After 23 years in prison, he was paroled in 2016. In 2018, his lawyers successfully argued Guevara had falsified evidence used to convict him. His was the 18th reversal of a conviction linked to Guevara’s falsifying evidence.
Anthony Jakes was only 15 in 1991, when Chicago detectives Michael Kill and Kenneth Boudreau beat him until he signed a false confession to murder. He served 22 years in prison before being paroled in 2013. He was exonerated in 2018.
To convict Jack Daniel McCullough of an infamous half-century-old cold case—the kidnapping and murder of a 7-year-old girl—Sycamore, Illinois, police and prosecutors fabricated evidence, knowingly created a false timeline for the night of the murder, used a biased and unreliable photo lineup, withheld evidence of innocence, and suborned perjury from a jailhouse informant.
He likely would have spent the rest of his life in jail had Ann O’Neill not produced a series about the case titled “Taken” in 2013. The series raised questions about the fairness of the trial, and reinvestigation by The Exoneration Project ultimately resulted in a judge issuing McCullough a certificate of innocence in 2016. By then, be had spent five years in prison and been stabbed in the eye by a cellmate while he slept.
Ledura Watkins was convicted of a Michigan murder in 1976 based upon false testimony and aided by the police hiding exculpatory lab and police reports. He was exonerated and released in 2017, having serving 41 years and three months in prison, after the witness’s recantation led to the discovery of the reports.
Adam Gray was 14 in 1993, the year he falsely confessed to setting a Chicago fire that killed two people. He was tried as an adult and sentenced to life without parole. In 2006, witnesses who had been coached into falsely testifying against him began to come forward. They revealed they had initially identified another person, but had been coerced by the police into changing their identification to Gray. It also was determined that the evidence of arson presented at trial was based on theories that have since been debunked. This led to his exoneration in 2017.
Vernon Horn was convicted of a 1999 convenience store robbery and murder. After he spent 17 years in prison, a reinvestigation revealed 13 pages of phone records that were stashed in a retired deceased detective’s basement for two decades. The records showed that he was nowhere near the store when the murder took place. This led to his exoneration at the age of 37. He has filed a lawsuit alleging New Haven police coerced and threatened witnesses into giving false testimony, fabricated evidence of guilt, destroyed evidence of innocence, and, of course, hid exculpatory evidence.
The police misconduct that led to the trial of Adrian Thomas was more subtle, but no less devastating. On September 21, 2008, Thomas and his wife discovered their 4-month-old son dead in his crib in Troy, New York. The initial diagnosis was that septic shock caused the death, but the treating physician believed there was a cranial fracture and concluded that the baby suffered blunt-force trauma. What followed was a typical example of police employing the Reid technique.
First police removed Thomas’s six other children and placed them in the custody of child protective services. This caused psychological stress and engendered a sense of urgency in Thomas. Then they began a lengthy interrogation of Thomas during which they discounted his protests of innocence. After two hours, Thomas suffered a near mental breakdown with thoughts of suicide and had to be taken to a hospital. When he was returned to the police station 15 hours later, the interrogation immediately resumed.
Thomas admitted having accidentally dropped the baby from the height of about 5 inches onto the crib mattress 10 or 15 days before the death. A detective insisted that his Desert Storm experience qualified him to determine that the baby’s head had been slammed down multiple times. They said that, if he did not do the crime, his wife had to have done it and threatened to charge her with murder. That was enough to cause Thomas to break and sign a confession that he had slammed his son down onto the mattress three different times. He immediately recanted, but was charged with murder and was convicted despite a medical examiner, who was an expert on child abuse, having testified at the trial that the death was caused by septic shock, and there was no cranial fracture. He was sentenced to 25 years to life.
An appellate court found that the police threats combined with Thomas agreeing to “take the fall for his wife” and the detectives’ repeated promise not to charge him if he would confess rendered the confession inadmissible. A jury acquitted Thomas during a second trial in 2014. He filed a claim for compensation with the New York Court of Claims.
Thomas’ case is more disturbing because, under the current standards of police misconduct, it is arguable that no misconduct took place. Detectives did not beat or torture Thomas. Police did not plant or withhold evidence. All they did was discount his claims of innocence, lie to him about overwhelming evidence of guilt, pretend to be sympathetic to what could have caused Thomas to commit the crime, and threaten to charge his wife. All of those are standard tactics under the Reid technique of interrogation. Thomas’ case provides a potent example of why lying about evidence and using threats—even to third parties—during interrogation should be considered misconduct.
As shown above, relatively few officers commit the great majority of police misconduct. They are able to do so for many year because of a police organization and culture that ignores, permits, or even encourages confrontational policing and the use of unwarranted violence. Even when other officers recognize that a line has been crossed, they are discouraged from reporting the misconduct by an insular culture and regulations that prohibit such misconduct on paper but are rarely enforced in practice.
Further, some police methods, such as the Reid technique, are considered perfectly acceptable but lead to false confessions and down the slippery slope that ends with obtaining confessions by any means possible—including torture.
Although little can be done to identify “bad apples” who apply to join the police apple barrel, monitoring of officers’ communications and activities for racists and pro-violence attitudes may make it possible to identify problem officers and intervene before greater misconduct occurs.
Likewise, monitoring the complaints and lawsuits brought against officers would enable departments to identify problem officers and attempt to rehabilitate or terminate them.
These reforms must take place and must begin with police departments admitting there is a problem and showing a desire to address it. The cost of not doing so is too great both in treasure and in lives lost or ruined.
Sources: californiainnocenceproject.org, policymatters.net, ncjrs.gov, washingtonpost.com, openscholarship.wustl.edu, innocenceproject.org, williams.edu, Court Review, law.umich.edu, muse.jhu.edu, law.justa.com, themarshallproject.org, scholar.law.colorado.edu, thealantic.com, lawecommons.luc.edu, Police Quarterly, George Washington Law Review, Law and Human Behavior, justice.gov,baltimoresun.com; cnn.com, nhregister.com, apnews.com, huffingtonpost.com, wjon.com, peopleslawoffice.com, wgntv.com
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