Constitutional Legal and Ethical Issues in Criminal Justice

Constitutional, Legal and Ethical Issues in Criminal Justice

Police abuse remains one of the most serious and divisive human rights violations in the United States. The excessive use of force by police officers, including unjustified shootings, severe beatings, fatal chokings, and rough treatment, persists because overwhelming barriers to accountability make it possible for officers who commit human rights violations to escape due punishment and often to repeat their offenses. Police or public officials greet each new report of brutality with denials or explain that the act was an aberration, while the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.

However, there are some things that need to be mentioned in order to fully understand the nature, role and importance of policing. Police work by its very nature involves the slippery slope (the potential for gradual deterioration of socio-moral inhibitions and perceived sense of permissibility for deviant conduct). Police are routinely involved in undercover work which involves taking on false identities and inducing crime, they are allowed to make false promises to hostage takers and kidnappers, they often feed disinformation to the media and are trained to be deceptive at interviewing and interrogation. Police make all kinds of excuses to get out of nuisance calls, trade or sell their days off and desirable work assignments or strain the truth to protect loved ones and crime victims. Police routinely invade privacy via surveillance and other technological means. Finally, police fighting the drug problem may encounter more loose cash than the gross national product of some small countries.

The police are the enforcement arm of government and the keepers of public order. The judicial system ultimately depends on the police for the enforcement of laws or court decisions. A close look to criminal law and criminal procedure may help define the structure of police work and its role and future development, as it follows the guiding principles of the criminal legislative and judicial system.

There are two fundamentally different types of court cases -- criminal and civil. A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime by Congress or a state legislature. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. There are significant differences between criminal and civil cases. For instance, in a criminal case a prosecutor, not the crime victim, initiates and controls the case. The prosecutor may file criminal charges even if the victim doesn't approve, or refuse to file criminal charges despite the victim's desire that criminal charges be filed. This method of beginning the case contrasts with civil cases where the injured party is the one who initiates the procedure. A person convicted of a crime may pay a fine or be incarcerated or both. Instead, people who are held responsible in civil cases may have to pay money damages or give up property, but do not go to jail or prison. In criminal cases, government-paid lawyers represent defendants who want but can't afford an attorney. Parties in civil cases, on the other hand, usually have to represent themselves or pay for their own lawyers. (Juvenile court cases and cases involving civil contempt of court where jail is a possibility, are exceptions to this general rule.) In criminal cases, the prosecutor has to prove a defendant's guilt "beyond a reasonable doubt." In a civil case, the plaintiff has to show only by a "preponderance of the evidence" (more than 50%) that the defendant is liable for damages. Defendants in criminal cases are almost always entitled to a jury trial. A party to a civil action is entitled to a jury trial in some types of cases, but not in others.

Sometimes the same conduct may violate both criminal and civil laws. A defendant whose actions violate both criminal and civil rules may be criminally prosecuted by the state and civilly sued by a victim for monetary damages.

Criminal procedure is composed of the rules governing the series of proceedings through which the substantive criminal law is enforced. In the United States, most crimes are defined by local and state government, though the federal government has adopted its own criminal code, to deal with activities extending beyond state boundaries or having special impact on federal operations.

States also have statutes that set out the framework for criminal procedure, subject to important constitutional limits. The U.S. Constitution Bill of Rights provides basic protections including the right to an attorney, the right to not testify, the right to confront witnesses, and the right to a jury trial, among others. State constitutions may increase, but not take away from the federal protections.

The American criminal system is an adversarial and accusatorial model. Criminal procedure must balance the defendant's rights and the state's interests in a speedy and efficient trial with the desire for justice. Therefore, the rules of criminal procedure are designed to ensure that a defendant's rights are protected.

Though legislators have relatively unfettered power to decide whether a certain behavior should be a crime, many rules limit the ways in which the state or federal government can prosecute someone for a crime. These restrictions start with the U.S. Constitution's Bill of Rights, which provides basic protections-such as the right to refuse to testify against oneself, the right to confront one's accusers and the right to a trial by jury-for people charged with crimes. State constitutions may increase (but not take away from) the federal protections. Federal and state legislatures can pass laws governing how criminal procedures work in their jurisdictions, but these laws cannot reduce the protections offered by the federal and state constitutions.

The interplay between constitutional provisions and legislative enactments is regulated by the courts. Courts decide whether or not a particular legislative rule, court practice or police action is permissible under federal and state constitutional law. What may seem like a slight variation from one case to another can be, in the eyes of a court, the determining factor that leads to a vastly different result. For example, a police officer is frisking a suspect on the street and feels a hard object in the suspect's pocket. Suspecting that the object is a possible weapon, the officer reaches into the pocket and finds both a cardboard cigarette box and a packet of heroin. This action by the police officer -- reaching into the pocket -- would be deemed a permissible search under the rulings of most courts (to protect the officer's safety), and the heroin could be admitted into court as evidence. However, if the object felt by the officer was soft and obviously not a weapon, then reaching into the suspect's pocket might be deemed an illegal search, in which case the heroin couldn't be used as evidence.

Police, state, and federal authorities are responsible for holding police officers accountable for abusive or arbitrary acts. Police officials must ensure that police officers are punished when they violate administrative rules, while state and federal prosecutors must prosecute criminal acts committed by officers, and where appropriate, complicity by their superior officers. Each of these entities apply different standards when reviewing officer responsibility for an alleged abuse. All of these authorities have an obligation to ensure that the conduct of police officers meets international standards that prohibit human rights violations and that, in general, the U.S. complies with the obligations imposed by those treaties to which it is a party. While only the federal government is responsible for reporting internationally on U.S. compliance with the relevant treaties, local and state officials share responsibility for ensuring compliance within their jurisdictions.

Police deviance is a much broader term than corruption or misconduct. It includes all activities which are inconsistent with norms, values, or ethics. America's obsession with police deviance, especially police brutality is deeply rooted, especially because of some incidents which were highly publicized by the media, and by television networks in particular. For instance, "in the early hours of March 3, 1991, a police chase in Los Angeles ended in an incident that would become synonymous with police brutality: the beating of a young man named Rodney King by members of the Los Angeles Police Department. An amateur video, televised nationwide, showed King lying on the ground while three officers kicked him and struck him repeatedly with their nightsticks. No one who viewed that beating will ever forget its viciousness."

The Rodney King incident projected the brutal reality of police abuse into living rooms across the nation, and for a while, the problem was front page news. Political leaders condemned police use of excessive force and appointed special commissions to investigate incidents of brutality. The media covered the issue extensively, calling particular attention to the fact that police abuse was not evenly distributed throughout American society, but disproportionately victimized people of color.

However, police deviance is a phenomenon much broader than brutality, although this is what the masses generally perceive as the main issue. According to Ida Tarbell, who makes a very broad observation of the police behaviour, "deviance (i.e. behavior inconsistent with norms, values, or ethics) also implies corruption (i.e. forbidden acts involving misuse of office for gain), misconduct (i.e. wrongdoing violations of departmental procedures) and favoritism (i.e. unfair "breaks" to friends or relatives (nepotism))."

Corruption is criminal conduct that can involve underusing one's authority, overusing one's authority, or profiteering via one's authority. The key element is misuse of official authority; the gain can be personal or for the common good. Corruption is bad because it undermines integrity, the state of policing being whole or undivided and it has been the target of numerous efforts at creating typologies.

Police misconduct is impropriety of office, not misuse of authority. It's wrongdoing, the appearance of wrongdoing, or puzzling behavior that violates standards usually set down in departmental policies and procedures, for good reasons, that the employee may or may not be cognizant of. Misconduct is bad because it leaves the public free to speculate and draw sweeping generalizations about the profession of policing as a whole. The different types of misconduct are often classified as follows: malfeasance (i.e. intentional commission of a prohibited act or intentional unjust performance of some act of which the party had no right (e.g., gratuity, perjury, use of police resources for personal use)), misfeasance (i.e. performance of a duty or act that one is obligated or permitted to do in a manner which is improper, sloppy, or negligent (e.g., report writing, unsafe operation of motor vehicle, aggressively "reprimanding" a citizen, improper searching of arrestees) and nonfeasance (i.e. failure to perform an act which one is obligated to do either by law or directive due to omission or failure to recognize the obligation (e.g., failure to file report, improper stop & frisk, security breach)).

According to the Knapp Commission (formed in the early 1970s by Mayor Lindsay as a result of the publicity generated by renegade detective Frank Serpico), which blew the whistle on the standard police explanation for corruption (he/she's a rotten apple in an otherwise clean barrel), "rotten apples" are either weak individuals who have slipped through the screening process or succumbed to the temptations inherent in police work or deviant individuals who continue their deviance in an environment that gives them ample opportunity. Police departments tend to use the rotten apple theory or some variation of the "rogue cop" story to minimize the public backlash against policing after every exposed act of corruption.

A functional explanation may be closer to the truth, and is indeed supported by almost every scholarly observer on the subject. A functional explanation is that corruption is inherent in society's attempt to enforce unenforceable laws. Another approach is the "occupational socialization" explanation, the polar opposite of rotten apple theory that is sometimes called "rotten barrel" theory. According to this view, the very structure of policing (exposure to unsavory characters, forgetting what you learned in the academy, clannishness, and overzealous, misguided approaches to crime control) provides plenty of opportunities to learn the entrenched patterns of deviant police conduct that have been passed down thru generations.

Police gratuity implies the receipt of free meals, services, or discounts. Nonfederal police usually do not regard these as forms of corruption. These are considered fringe benefits of the job. Nevertheless, they violate the Code of Ethics because they involve financial reward or gain, and they are corruption because the officer has been placed in a compromising position where favors (a "fix") can be reasonably expected in the future. When there is an implied favor (a "wink and nod"), it's called "mooching." When the officer is quite blatant about demanding free services, it's called "chiseling."

Gratuities often lead to things like kickbacks (bribery) for referring business to towing companies, ambulances, or garages. Further up the scale comes pilfering, or stealing (any) company's supplies for personal use. At the extreme, opportunistic theft takes place, with police officers skimming items of value that won't be missed from crime scenes, property rooms, warehouses, or any place they have access to. Theft of items from stores while on patrol is sometimes called "shopping." shakedown is when the police extort a business owner for protection money. The typical scenario involves gay bars, which are considered the most vulnerable. In some cities (like Boston for example), police are still charged with the power to inspect bars for compliance with liquor regulations. Officers are then in a position to threaten bar owners with violations if they do not make payoffs, and promise to intercept ("fix") any other violation reports processed through department channels. In other cities (like San Francisco, for example), officers would promise extra protection against gay-bashing in return for extra payments. In still other cities (like New Orleans, for example), moonlighting officers would make extra money from "details" in liquor establishments, and be paid extra for overlooking open sex or drug violations. In some cities, police officers have complete control over liquor licenses and even own nearby parking meters. To deal with the gay bar issue, many police departments have tried hiring openly gay recruits.

Shakedowns are also common with strip bars, prostitution rings, drug dealing, illegal gambling, and even construction projects. In each case, the approach and modus operandi are somewhat variable, because each officer subjects the business operator and/or patrons to the shakedown differently.

Perjury usually implies a means to effect an act of corruption, leaving out certain pertinent pieces of information in order to "fix" a criminal prosecution. "Dropsy" evidence is typical, where the officer testifies untruthfully that he/she saw the offender drop some narcotics or contraband. Lies that Miranda warnings have been given, when they haven't, are also typical. Lying in court is called "testilying," and police can do it coolly; they're trained witnesses.

Other actors in the system, supervisors and even judges, are often aware of the perjury. They pretend to believe police officers who they know are lying. Everybody's happy with the system. The cop gets credit for a good bust; the supervisor's arrest statistics look good; the prosecutor racks up another win; the judge gets to give his little lecture without endangering his reelection prospects, the defense lawyer gets his fee in dirty money, and the public is thrilled that another criminal is off the street. The irony of it is that most perjury is committed by decent cops who honestly believe a guilty defendant will go free unless they lie about something.

Police brutality has been defined as excessive force, name-calling, sarcasm, ridicule, and disrespect." When a citizen charges police brutality, they may be referring to a number of things, including profane or abusive language, commands to move or go home, field stops and searches, threats of implied violence, prodding with a nightstick or approaching with a pistol or even the actual use of physical force.

Only the last one of these (unreasonable and unnecessary actual use of physical force) can be considered police brutality. This is commonly expressed as "more than excessive force."

Excessive force" is used to refer to force that exceeds what is objectively reasonable and necessary in the circumstances confronting the officer to subdue a person, as in Article 3 of the U.N. Code of Conduct for Law Enforcement Officials, which provides that: "Law enforcement officials should use force only when strictly necessary and to the extent required for the performance of their duty." GA resolution 34/169 passed on December 17, 1979, and in the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which stipulates that, "Whenever the use of force and firearms is unavoidable, law enforcement officials shall exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved." UN Doc. A/CONF.144/28/Rev.1 (1990). In Graham v. Connor 490 U.S. 386 (1989), the United States Supreme Court held that that the United States Constitution's Fourth Amendment requirement of "reasonableness" on the part of the police applies to "all claims that law enforcement officials have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other seizure of a free person.

Police perjury and police brutality go hand in hand, as officers who commit brutality will most likely lie on the stand to prevent the possibility of a lawsuit or departmental charges. The reasons why an officer might engage in this kind of conduct are many: a small percentage may have been attracted to police work for the opportunity to enjoy physically abusing and hurting somebody, an officer may come to believe "it's a jungle out there," an officer may be provoked and pushed beyond their endurance. The most common reason is occupational socialization and peer support. One common belief is that it's necessary to come down hard on those who resist arrest because they may kill the next police officer who tries to arrest them. Another practice is the "screen test," police jargon for applying the brakes on a police vehicle to that the handcuffed prisoner in back will be thrown against the metal protective screen.

There are many reasons why a police officer would use obscene and profane language. Effective use of verbal communication is one of the skills expected in police work. Concepts such as "command voice" and "command presence" are routinely taught at police training academies. The FCC specifically condemns certain words on radio and television that are "patently offensive," but there's no such mechanism for determining what's offensive with interpersonal communication. The typology implies words having religious connotations (e.g., hell, goddamn), words indicating excretory functions (e.g., *****, piss) or words connected with sexual functions (e.g., *****, prick).

Sleeping on duty, of course, is just an extreme example of goldbricking, the avoidance of work or performing only the amount minimally necessary to satisfy superiors. Goldbricking can take many forms: from ignoring or passing on calls for service to someone else; overlooking suspicious behavior; or engaging in personal business while on duty.

Misuse of confidential information normally involves the jeopardization of ongoing investigations by "leaking" information to friends, relatives, the public, the press, or in some cases, directly to the criminal suspects or members of their gang. The officer may be unaware that they are even engaging in this kind of conduct which may involve "pillow talk" in some instances. Failed raids, for example, are often due to a leak in the department.

In other cases, department resources, such as computer systems, may be used to produce criminal history reports for "friends" of the department such as private detectives, consulting firms, or area employers. Passwords can also slip out, granting access to computer network information. In rare cases, police resources are put to use in blackmailing political figures. In general, however, cracking down on secrecy violations has produced more problems than it has solved. Part of the reason for the current fragmented condition of American law enforcement rests upon a false sense of security derived from overdone needs for secrecy.

There are endless opportunities to drink or take drugs while on duty (e.g., victim interviews, shakedowns, contraband disposal), and the reasons for it are many: to get high, addiction, stress, burnout, or alienation from the job. However, even in cases of recreational usage (which doesn't exist, since officers are never off-duty or have any of their "own time"), the potential is there for corruption. The officer must obtain the drugs from some intermediary, involve others in transactions, and open the door to blackmail, shakedowns, ripoffs, and coverups. It sets a bad example for public relations. It will affect judgment, and lead to the greater likelihood of deadly force or traffic accidents. Alcohol and drug use tends to become a systemic problem; others become involved, either supporting or condemning the user. Alcohol and drugs tend to be mixed by police officers because there's more subcultural support for alcoholism; thus the abuser covers up the drug use with alcoholism.