The Control of Police Misconduct in the Americas

Paul Chevigny

A woman is arrested by two members of the vice squad. She was charged with the offense of offering to commit prostitution 6ith an unknown man for the sum of fifteen dollars. Her social and financial status is such as to render the charge utterly incredible. After effect- ing an entrance into her apartment, the police officers question her about her finances and assets for about forty-five minutes before tak- ing her to the police station. . . . She is taken to the . . . Police Station and is there prevented from using the telephone until after she makes an arrangement with one John Steiner, a professional bondsman, for her release on bail. Before he consents to go on her bond, Steiner re- lieves her of her jewelry and takes it out to have it appraised. M e r the necessary arrangements for releasing the woman on bail have been completed, Steiner . . . states: "We fm these cases up all the time. No matter how innocent you are, you are going to get yourself in a jam and they might jail you because they all work hand in hand and they (the magistrates) will take their word."

. . . On the day of the trial she is again called for by [the bondsman],

who takes her to court, informing her on the way "It is going to be fixed and don't worry. Everything will be fixed. . . . Now don't you get excited and say anything."

. . . At no time was she informed that she would be represented by an

attorney, but when she arrived at the Court House and her case was called for trial, there was a man present who asked the policeman questions after the District Attorney had finished his direct examina- tion. . . . All she knows is that all persons concerned were very insis- tent upon her maintaining silence and that at the conclusion of the of- ficer's testimony she was told that she could go home. . . . The Deputy Assistant District Attorney . . . testified that after the conclu- sion of the case, he received a sum of money from the defense attor- ney. (From Samuel Seabury, In the Matter of the Investigation of the Departments of the Government of the City of New York [Seabury Report, 19321 in Chin 1997, vol. 3,21-23)

Introduction: Police Abuse and the System of Justice The case quoted above occurred in Manhattan some 70 years ago. The then-governor of New York, Franklin Roosevelt, together with the judges of the appeals courts, had appointed Judge Samuel Seabury in 1930 to in- vestigate corruption in the lowest criminal courts in New York. Judge Seabury discovered a conspiracy to pervert justice among judges, lawyers, bail bondsmen, politicians, and police as well as underworld figures; he exposed it, using this case as one example of m y , in his report of 1932, one of six such reports about police scandals that occurred in New York City about every 20 years in the century from 1894 to 1994.

Judge Seabury's investigation and report was the most successful of the six, even though he made few recommendations specifically about the po- lice. He recommended instead that the lower courts be completely reor- ganized, with new judges appointed, that the bail system be reformed, and that indigent defendants be defended in an organized way rather than by "hangers-on" at the courts. The political situation was such that the exist- ing lower courts were completely discredited, and the governor and supe- rior judges were actually able to push through these reforms. The result was that the system of fixing cases in the courts largely passed away, and

Control of Police Misconduct 47

the practice of beating and coercing suspects to extract confessions entered a long process, over the next 30 years, toward near-extinction.

The experience of the Seabury investigation shows that police abuses of suspects may take the form of false charges or of brutality, or both, and these may be connected to acts of corruption by the police. The most im- portant point to take from Judge Seabury's report, however, is that police abuses are virtually impossible to control if the criminal justice system as a whole tolerates or encourages them. If the prosecutor and the judge expect to take bribes and to overlook police brutality, then they rely on the police to participate, and it is sheer hypocrisy to focus criticism on the police. Conversely, if the criminal justice system sets its face against police abuses-if, for example, the courts try consistently to exclude coerced confessions-then the incidence of such abuses is going to drop.

Although the reforms after the Seabury investigation enormously im- proved the criminal justice system in New York City, the police piscon- duct that was part of the pattern has not passed away. Police brutality and corruption persist in New York and other cities in the United States, just as they do elsewhere in the Americas. One reason for the persistence is that city dwellers, as well as politicians, are not altogether sure that the abuses are a bad thing. It is important to come to grips with this political ambiva- lence about police abuses. We must see clearly the problems that police abuses create, for citizen security as well as for the consolidation of democracy, if we are to talk of control.

This chapter will briefly consider, in the next section, the connection between corruption and violence and the citizens' sense of security. Fol- lowing that, the chapter will survey the options available in the Americas for the control of police violence, considering in turn the functions and du- ties of the central government as a whole, then focusing on the legislature, the courts, and, most extensively, systems of oversight and discipline. In this last connection, the chapter will take up criminal and civil liability of police personnel andfor the state for police abuses, as well as problems of administrative regulation, either within the police institution itself or from government institutions outside the police. Finally, the chapter will briefly discuss controls through international institutions.

Police Abuse and Citizen Security Even though corruption is the most generally condemned of police abuses, it is nevertheless clear that corruption would not exist if many citizens did

not want to prevent the enforcement of the laws, particularly in vice crimes like drugs and prostitution. Corruption arises chiefly because of our hypocrisy-we want to indulge the very vices that our laws forbid, but we do not want to revoke the laws. Corruption, moreover, commonly spreads throughout the pblitical system; elected officials depend upon a percentage of the graft, for example, from gambling or drug operations. This has long been true in many cities in the United States, and it is currently a problem in Colombia and Mexico as well as other countries (for U.S. cities, see Chevigny 1995, chap. 4; for Mexico, see Human Rights Watch 1999).

It is equally clear that corruption, at least when it goes beyond a bribe to turn a blind eye to a gambling operation or the like, presents a threat to citi- zen security. The police take bribes to release defendants in ordinary crimi- nal cases, such as thefts, or to return the proceeds of crime to its owners, as the civil police have done for decades in Brazil (Mingardi 1992). Thus cor- ruption keeps predatory criminals in business. Moreover, police participate in serious crimes themselves for profit; in recent years, there have been scan- dals about police involvement in kidnapping rings in Brazil (U.S. Congress 1996, 344, Argentina (Chevigny 1995, chap. 7), Colombia (Arnson and Kirk 1993), Guatemala (Moore 1996), and Mexico (Dillon 1996). Kidnap- ping is one crime that most frightens middle- and upper-class people in Latin America; by participating in it, the police are creating the very fear and inse- curity that governments claim they are trying to alleviate. This perpetuates the demand for more "tough police measures" and enables governments to promise that they will redouble their efforts to protect the citizens. Cormp- tion creates an endless need for more police protection.

Corruption is connected to the physical abuse of citizens and interfer- ence with their human rights through the arrogance of office; in deciding whether to enforce a law or take a bribe instead, or whether to punish a per- son by beating him up, the police are saying that they are the bosses of the streets. They are legislature, judge, and executioner for the laws. Both the first and last investigative commissions in New York City, 100 years apart, recognized this. The 1894 report said "that the police formed a separate and highly privileged class, armed with the authority and the machinery for oppression and punishment, but practically free themselves from the operation of the universal law." The 1994 commission used very similar language (Clarence Lexow, Report and Proceedings of the Senate Com- mittee Appointed to Investigate the Police Department of the City of New York b x o w Commission Report, 19841 in Chin 1997, vol. 1,31; Milton Mollen, Report of the Commission to Investigate Allegations of Police

Control of Police Misconduct 49

Corruption and the Anti-Corruption Procedures of the Police Department [Mollen Commission Report] in Chin 1997, vol. 6,48-50). Such arro- gance in law enforcement is the essence of a system that shows contempt for democratic lawmaking and citizen participation; it tends to create fear of the state and contempt for the law.

Corruption, moreover, strengthens a system of impunity; if all or most police are implicated in crimes, then they must create a wall of silence against investigation that will prevent the detection of violations of human rights as well as acts of corruption. Acts of violence against citizens must be concealed, because virtually all the official participants and observers have secrets that they expect the others to preserve.

Even where corruption is investigated and condemned, there is neverthe- less a persistent tolerance, in aIl parts of society, for some level of violence by the police. The 1994 report on the New York police noted that superior offi- cers at the middle level, such as sergeants, are tolerant of some "street justice" as a means of social control, and Danyl Gates, former police chief of the city of Los Angeles, claimed that his city was safer because the police were so tough (Mollen Commission Report in Chin 1997, vol. 6,49; Gates is quoted in Skolnick and Fyfe 1993,205-7). If we are to think intelligently about con- trol of police misconduct, we have to decide whether this tolerance is justi- fied. If some violence outside the law really is necessary to have order, then police misconduct is a much smaller problem, and some "police brutality" may be viewed sociologically as an unpleasant but necessary measure.

Is it a myth that being "tough" (in the sense of violent) tends to increase order? In the case of the use of nondeadly force, it is difficult to determine precisely as an empirical matter, because we do not have reliable evidence about how much of this sort of brutality occurs; thus we cannot contrast it with changes in the crime rate or anything else. The amount of deadly force used by the police, however, is not difficult to determine in cities in the United States. A series of respected studies have shown that there is no correlation between the number of shootings by police and the arrest rate, the crime rate (including the homicide rate), or the safety of officers (sum- marized in Skolnick and Fyfe 1993,206). A moment's reflection suggests that the same is probably true of nondeadly force, because the use of such force is unsystematic and haphazard, just like the use of deadly force.

What the use of unjustified deadly as well as nondeadly force clearly does create, in a society with an aggressive free press, is a sense that the po- lice are not accountable to the law. For those whose rights are actually vio- lated, and their friends, neighbors, and family, arbitrary violence creates a

fear and hatred of law enforcement. When other city dwellers see a video- . tape showing that the police have abused a person, or even read about it, that increases a sense of alienation-helplessness in the face of power.

It is true that it has been reported in Brazil that videotapes and other re- ports of extreme police violence, such as executing suspects, have pro- voked widespread public approval (U.S. Congress 1996,342). But such re- actions are an indication of the low regard for the law as well as for the police; the public is so desperate that it expects no legal redress, but only violence. At the same time that they approve of official violence, Brazil- ians have little confidence in the police, suppose that they are allied to or- ganized crime, and report few crimes to them (Alencor and Godoy 1996; Holston and Caldeira 1998). Respect for the law is damaged, and thus the demand for more unlawful actions by officials is only increased. More- over, all violence, but especially violence by officials, builds anxiety and an air of crisis in society. People feel that their expectations are likely to be disappointed; that they cannot rely on the regularity of official action. The notion that people have rights for the violation of which they can demand redress, which is essential to citizenship in a democracy, is weakened.

Control of Police Misconduct

Police violations of human rights can be controlled through many institu- tions and means. The government can set legal policies, chiefly thorough the legislature and the courts. More important, administrative controls can be imposed either by or outside the police, or both. The criminal justice system can prosecute crimes by police, and the civil courts may award damages or other redress. If all else fails, international remedies are avail- able as a last resort.

Central Government Policy

If it is clear that the control of police misconduct is important, both for a sense of security and for the consolidation of responsive government, it is equally clear from instances like the Seabury investigation that such con- trol cannot be seriously undertaken unless institutions in the government, and especially in the criminal justice system, are consistent about opposing such abuses. If politicians depend on police cormption or if high officials believe, explicitly or tacitly, that police violence is necessary for social contml of the poor, then concentrating on institutions for control of police

Control of Police Misconduct 51

misconduct is largely futile, although investigations by such institutions may help to reveal the dimensions of the problem.

For example, in Mexico there currently is pressure for reform and a halt to human rights abuses. But recent reports and studies suggest that corrup- tion, particularly in the drug trade, has extended from the lowest police of- ficer to the highest levels of government. The courts rely on abusive prac- tices such as coerced confessions to conduct cases, and they appear to have Little desire to exclude them. The prosecutor also often connives in such abuses and is sometimes involved, as are the police, in schemes to shake down suspects for payments. Defendants remain imprisoned even in cases where it is clear they have been framed. The National Commission for Human Rights, established to investigate such abuses, frequently conducts revealing investigations and sometimes succeeds in having officials disci- plined. But that institution is unable to substantially reduce the abuses be- cause the system appears to depend on them; a reform in the criminal jus- tice system, including the judiciary as well as the prosecutors, to change the system of abuses, is required (Preston 1998; Human Rights Watch 1999; Chevigny 1995, chap. 8). Without a change in these policies, it would seem that program focused on police "accountability" would not be likely to have favorable results.

It is thus the function of the central government, in the first instance, to establish standards for the police and oversee their work to bring them up to those standards. In Brazil, the federal government has advanced an am- bitious human rights program, with many proposals for control af police misconduct. Although the program has not been adopted in its entirety by the Congress of the nation, it is creating an atmosphere more hospitable to the control of abuses. The federal government, moreover, has long had the additional power to investigate local abuses. Thus after a massacre in the house of detention in Sb Paulo in 1992, when the local officials failed to act against the perpetrators, thefederal Council for the Defense of the Human Person reported that the prisoners had been summarily executed. The federal pressure, reflecting international scandal, had the effect of driving the SZo Paulo military police to reduce the number of killings. This has led to a program in which the SHo Paulo state administration has tried to train the military police to respect human rights (Cavallo 1997,50-54).

Both the Mexican and Brazilian situations reflect the fact that govern- ments in federal systems are reluctant to intrude on the prerogatives of state officials; they have nothing to gain by antagonizing police and politi- cians and they do not act lightly to correct abuses at the state level. In the

United States, for more than a century the federal government has had the power to prosecute local police for acts that violate constifutional rights, that is, in effect, for violation of some human rights standards. That power has been rarely used, and often only after a state prosecution has failed, as in the case of the Rodney King beating in Los Angeles, where the police involved were convicted in federal court after being acquitted in California state court. Nevertheless, the presence of the possibility of federal prosecu- tion has caused some state prosecutors-in New York, for example-to look closely at police misconduct cases and to prosecute in clear cases for fear that the federal prosecutors might supersede them.

The Legislature

Until recent years, the United States federal government did not have the power to bring a case against police officials at the state or city level to force them to change their practices. In the Violent Crime Control Act of 1994, in reaction to the Rodney King beating, Congress finally gave the at- torney general the power to bring a case to enjoin a "pattern or practice" of violating the federal Constitution or laws.' A group organized in the fed- eral Justice Department, after investigating such patterns in several depart- ments, has been able to establish standards for the administrative control of abuses; those standards will be discussed in more detail below in the sec- tion on oversight and discipline. This change in the functions of the attor- ney general illustrates that the potential powers of the legislature to control the police are enormous.

Lawmakers can limit police discretion, increase protection for suspects, and thus reduce police opportunities for abuse. In Argentina, Mexico, and the United States, the law limits the amount of time a suspect can be held before being brought before the court, thus making it more difficult to co- erce the suspect. In Argentina and Mexico, recent legislation has rendered confessions made to the police alone, without the presence of other offl- cials, inadmissible as evidence. Everywhere the law sets the standards by which an individual can be detained or arrested, and the standards for searching houses, tapping telephones, or otherwise intruding on privacy. Although the courts have sometimes seemed reluctant to give full force to these rights, the legislation is an essential tool; the courts have little to work with unless the law sets standards.

By the same token, the legislature may give the police very wide discre- tion. In the United States, the Constitution does not permit a person to be

Control of Police Misconduct 53

detained solely for purposes of identification, although a person may be detained briefly based on specific reasons to suspect him of a crime. In Ar- gentina and Brazil, as well as very commonly elsewhere in the world, a person may be detained merely for identification; the police take advan- tage of the power and thousands of persons are detained for this reason every year. Sometimes they have been coerced and brutalized. In Buenos Aires, moreover, the police long arrogated to themselves the power to es- tablish internal regulations, edictos policiales, for taking persons into cus- tody, and the courts have not effectively denied them that power. Recently, these powers have been limited by the legislature after a long struggle by human rights advocates. It is interesting to see the effects created by the sudden visibility of the problem revealed in the legislature; the edictos have been replaced by contravenciones (violations) embodied in new laws, and the contravenciones have themselves become controversial either as too restrictive or too permi~sive.~

The legislature also has investigative powers incidental to its lawmak- ing powers. In every country in the Americas, the legislature has under- taken to look into police scandals concerning corruption, brutality, or other invasions of rights. The first major investigation of police corrup- tion in New York City, in 1894, was undertaken by state legislators. Apart from ad hoc investigations, the legislature can establish ongoing institu- tions of accountability for the police, as Congress has done in the United States by empowering the attorney general to investigate patterns and practices of abuses. Thus in Siio Paulo (see Cavallo 1997,14), the legisla- ture has created an ombudsman (ouvidoria) to look into police abuses, which has been credited with reducing the amount of police violence in the state.3

Virtually all systems of accountability for the police are ultimately traceable to the legislature, either in the local or central government, which establishes the laws for reviewing police actions as well as for retaining or dismissing individual offenders. The decision whether systems of review shall be internal or external, and what form they should take, is commonly one for the legislature.

The Courts

The courts act as a control over police abuses first by enforcing the laws that protect the rights of suspects. Modem legal systems generally exclude coerced confessions as evidence at trial, for example, but the courts differ

greatly in their willingness to enforce the exclusion. Through the famous Miranda decision, the U. S. Supreme Court has required the police to warn suspects of their right to remain silent, and the Court has imposed a burden of proof on the state to establish that contested confessions are in fact vol- untary." As these protections have been systematically applied in the local U.S. courts, the incidence of coerced confessions appears to have dropped enormously. In Mexico, laws have been adopted to limit the use of force to obtain confessions that are more stringent on paper than the rules in the United States; a confession made to the police alone, without the presence of the prosecutor or a judge, may not be used at trial as evidence.

Yet this right to remain silent has had limited effectiveness because prosecutors have not been careful to prevent coercion, and police have in- timidated defendants into reaffirming coerced confessions before other of- ficials. In effect, Mexican courts have accepted such confessions under older doctrines of law, and they have failed to release defendants even when it is clear that confessions have been coerced (Human Rights Watch 1999). If the courts are to play their constitutionally mandated role in the control of police abuses, it is essential that they protect the constitutional and statutory rights of suspects. The courts also play a role in the direct control of abuses by individual police through criminal prosecution and civil claims for damages, which will be considered in the next section.

Oversight and Administration of Police

Police abuses are often best controlled by regulations that minimize the sit- uations in wbich abuses may arise or create bureaucratic records of such situations. Thus in the early 1970s, the New York City Police established stringent standards for the use of firearms; in addition, the police depart- ment established a protocol, still in effect, for reporting and investigating every time a shot is fired. Senior officers go to the scene, examine it, and prepare a report. Officers who are found to have violated the regulations are disciplined. These regulations caused the use of deadly force to drop precipitously in New York. As Fyfe (1979) found in a famous study, the decline in the use of deadly force did not adversely affect the crime rate, the arrest rate, or the safety of officers.

Although less thorough, a similar program is being used in Siio Paulo. There the military police have a program to retrain police involved in fatal shootings, in which police undergo evaluation and counseling for a period of 3 months. By analogy, the police may be required to file a written report

Control of Police Misconduct 55

every time they use force of any kind, whether in an arrest or otherwise. These force reports can then be used to track the use of violence by indi- vidual officers as well as by the police force as a whole.

Vehicle pursuits also give rise to acts of violence by the police, because they create danger and the person fleeing the police is literally defying au- thority. In the United States, vehicle pursuits are sometimes limited so that the pursuit cannot be undertaken without approval by superiom5

Training in the rights of citizens, the use of firearms, and when and whether to use such arms, as well as in the principles of forensics for the preservation of evidence is essential to the control of police misconduct. Apparently such training is sadly lacking for the police in Argentina (CELS 1997, 61-62); training in the rights of citizens has begun in SHo Paulo.

Neither regulations nor training to minimize the risk of violence will be successful unless police executives and the government as a whole are de- termined to make it clear that standards that control corruption and protect the rights of citizens will be enforced. Police violations of the laws can be controlled in at least three ways: through criminal prosecution; through civil claims for damages or other relief; and, most important, through ad- ministrative oversight and discipline, which is addressed in a separate sec- tion below.

Prosecution

I have had occasion elsewhere to criticize prosecution as a way of control- ling police discretion, because prosecutors can handle only a limited num- ber of cases, the burden of proof in the criminal justice system of every country is very high (as it should be), and the likelihood of conviction de- pends on the luck of whether witnesses and forensic evidence can be found (Chevigny 1995,98-99). In places where more sensitive instruments can be used, such as oversight bodies, or where police executives themselves are interested in controlling police abuses, prosecution is a very blunt in- strument. Nevertheless, there are crimes so serious, as in the case of out- right murder or torture, that criminal liability is clear and no lesser remedy is sufficient.

More important, in places where police executives themselves are not willing to control the violence, and other controls are weak, prosecution is the most important means of accountability. In such jurisdictions, it is nec- essary to protect the state's witnesses against retaliation, and a program of