Such checks and balances on the judicial front are not always successful when attempting to prosecute cases involving policing agencies and the unions that represent them. ProPublica.com, in a September 23, 2020, posting titled, “How Criminal Cops Often Avoid Jail” and co-published with the Asbury Park Press, reported that in New Jersey alone, of the 398 official misconduct cases reviewed for possible prosecution, “law enforcement officers were over represented.” Though police officers are only 8% of the entirety of New Jersey’s public employees, they were responsible for 30% of the misconduct caseload. ProPublica went on to report, “There were 118 cases involving law enforcement personnel: 67 police officers, 11 sheriff officers and 40 correctional officers. By comparison, teachers made up about 35% of public employees, but accounted for 10% of the official misconduct cases.”
Police misconduct is nothing new. For decades, the blue line has been tangled and twisted. More recently, in connection with the George Floyd summer protests, the issue was propelled into the limelight around the country. What has become more evident is that police misconduct may be systemic in epidemic proportions. In the 1970s in New York City, the Serpico case shined a spotlight on the issue of how bad actors on the force hid behind the blue shield and protected each other. These days, it is evident that protectionism and cronyism have moved beyond the walls of the squad, the precinct, and the department and into the courtrooms and legislative bodies.
When cops charged with breaking the law are brought before the courts, outcomes are usually lenient. Instead of prison sentences, officers often receive probation or “desk duty” even in instances of witnessed abuse and brutality. Overzealous officers are rarely fired, and when there is no “official” record of wrongdoing, the violations are kept confidential and they are free to seek employment in another municipality. “Prosecutors and judges,” ProPublica suggests, “have consistently downgraded charges in ways that fail to carry out the law that calls for putting public servants convicted of official misconduct in jail.”
In New Jersey, one of the few states where officers are not yet licensed, the courts have little ability to remove officers from the force or prevent them from seeking work elsewhere. Newly signed legislation, however, will require them to wear body cameras.
Police unions also play an important role. Consider the case of New Jersey police union leader Sean Lavin. He was indicted in 2014 while working for the Mercer County Sheriff’s office. Lavin was accused of pepper-spraying a handcuffed woman, then filing a false report and encouraging other officers to fake their reports. ProPublica reports there were no charges, no probation. According to ProPublica, he simply resigned from the force in 2015 and entered a pretrial intervention program, an alternative to greater punitive measures in low-level misconduct cases. Lavin’s participation in this program wiped his slate clean, and today, he is an active member of the police union that protected him. These types of plea deals were supposed to have been eliminated in New Jersey years ago by legislative actions, but they have become the norm in police misconduct cases.
In Baltimore, a court was forced in June 2018 to dismiss charges against 12 officers. The Internal Affairs department of the Baltimore police simply proceeded to file formal complaints in an untimely manner, anticipating they would encroach upon the filing deadline. After issuing the order to dismiss, Judge Fletcher-Hill said he felt it was “risky” for the department to keep waiting to the last minute to file.
Under the Law Enforcement Officers Bill of Rights (“LEOBR”), cops in Baltimore are given a whole year to prepare a defense and often wait until the last minute to make their presentment.
Along with such tactics of pretrial intervention and legal protections only available to law enforcement officers like the LEOBR or other legislative loopholes, police and government officials also shelter under the protection of “qualified immunity” – a legal loophole that protects law enforcement officers and other civil servants from legal recourse or liability while executing their official duties and obligations. Under qualified immunity, it is virtually impossible for a victim to bring about a lawsuit against a law enforcement officer, correctional officer, or government official despite the level and egregiousness of abuse.
During the summer of the Floyd protests, the Supreme Court refused to examine the policy of qualified immunity. Two of the Justices, Thomas and Sotomayor, dissented from the refusal. Sotomayor acknowledged previously that the Court “displays an unflinching willingness” in allowing the lower courts to grant qualified immunity to police officers but “rarely intervenes” when lower courts go too far. This “one-sided approach” transforms qualified immunity into an “absolute shield for law enforcement officers,” Sotomayor warned.
Hurdles to Reform
Ellen Karcher, once a town councilperson in New Jersey, found out the hard way what it meant to go against police corruption. Karcher said in 2006, “My house was vandalized, my mailbox blown up. I got scary phone calls warning me that it wasn’t good for my health to be standing between powerful people and millions of dollars.” These threats fell on the heels of her stint within the New Jersey Senate. She had become a state senator and member of the Senate committee crusading against public corruption with a bill that would harshly punish public employees when they abuse the public trust. The bill, signed into law in 2007, called for jail time for law enforcement officers and other public officials convicted of bribery, tampering with public records, or other job-related misconduct.
Even with this law in place in New Jersey and similar legislation elsewhere in the U.S., cops continue to buck the system. Probation, pretrial prevention, desk duty, or dismissal from the force are still the likely outcomes in misconduct cases, rather than prison. In many instances, police officers either continue to work or are back on the street after a short hiatus.
Another important factor in cops avoiding jail time is the close relationship between officers and prosecutors who often work together to convict suspects. This provides a buffer to police convictions – an extension of the “blue line.” Cops and prosecutors consider themselves on the same side – fighting the bad guys and keeping the peace. It is difficult for prosecutors to act with objectivity when the suspect is one of their teammates. It is also equally difficult for an “impartial” judge to punish a violator who has been on the “right” side of the law throughout most of his or her career.
Across the country in places like Minneapolis and Louisville, we watched the tragic abuses perpetrated against protesters by overly zealous police. It is impossible to deny that failure to hold police to account, and inadequate and inappropriate training techniques, are not crucial elements in the problem of police misconduct. These factors provide a reasonably adequate explanation for the street violence that led to much of the 2020 protests in the first place. These are systemic injustices that remain in crucial need of reform.
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