Tuesday, October 03, 2006

Law Enforcement and its Special Interests

Few political offices have been more central to the nexus of sensitivities and powers that I call "Governing through Crime" (see, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP NY 2007)) than that of state governor. We can take practically each political action of a sitting governor on crime related issues as a rather precise indicator of the demands of the key constituencies empowered by the war on crime, namely law enforcement, and the conceptual category of "crime victim" (a category invoked by lots of potential actors). Consider the recent decision by Governor Arnold Schwarzengger to veto a series of bills implementing the recommendations of a commission set up by the California Senate in 2004 to investigate the causes of wrongful conviction in California (read the SF Chronicle story). The Governor was lobbied by state law enforcement groups who opposed the measures that would have required police to video tape confessions (at least of violent crime suspects) and established protocols for eye witness identification procedures. Both are subjects that have been firmly linked to the problem of wrongful convictions. There is a great deal of literature on both topics and I will blog further on this issue over the next couple of weeks, but today's question is rather different: Why is law enforcement opposed to measures that would make it less likely that an innocent person would be sent to prison (or even the death chamber) because of police errors or misconduct?

Here are some suggested answers (to be discussed further).

The Fantasy Factor
Like the tobacco industry (and at earlier time the automobile industry as well), law enforcement as a broad special interest is deeply alarmed at having to acknowledge that anything bad ever happens to innocent people as a result of their conduct.

  • What do these industries have in common that would lead to such a concern with obscuring rational discussion of the risks? (Hint: they all sell products that are in large part made of fantasies)
War on Crime Trumps Separation of Power
The war on crime has reworked the political dynamics between the branches of government in a way that shelters law enforcement from accountability. Legislatures and the US Congress have generally been unwilling to challenge in any way the presumption of both good will and infallibility on the part of law enforcement. It is remarkable that a bipartisan group of California legislators were able to come together to pass these bills in the first place (more on that later). Courts have been stripped (or more disturbingly still, stripped themselves) of much of their power to hold law enforcement accountable through the suppression of ill gotten evidence, or through financial responsibility in civil law suits for damages, or even to substantially investigate patterns of discriminatory behavior.

(That this is not, thank G-d, universally true, is testified to by one of Boalt Hall's most renowned graduates, the great Thelton Henderson , of the US District Court for the Northern District of California, who has been able to open the guarantuan California penal archipelago to its first serious examination in decades, see some of my earlier posts on prison litigation below).

The Decline of Investigation
Law enforcement has become reliant on forced confessions and other forms of junk evidence as a by product of its long dirty war on drugs. I shall be blogging further over the next few weeks on this third factor and the lost tradition of police investigation that has been covered over by this successful mass incarceration model. This is speculative. The conventional wisdom is that police are much more professional than they were a generation or two ago, largely a result of a decline in discretion and investment in better management, training, and technology. I don't disagree, but these improvements may have been swamped by the profound effects of urban police largely becoming embedded in a long and on going war on drugs. For a parallel that may prove fruitful, consider the discussion in Israel over whether the long involvement of the Israeli Defense Force in the suppression of Palestinian resistance to occupation on the West Bank and Gaza created internal changes the vulnerabilities of which were on display in the recent and disastrous (from Israel's perspective) Lebanese war.



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