Revisiting Who Is Guarding the Guardians?
Statement of Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and Commissioners Christopher F. Edley, Jr., Yvonne Y. Lee, Elsie M. Meeks, and Victoria Wilson
This Commission report, Revisiting Who Is Guarding the Guardians? A Report on Police Practices and Civil Rights in America, serves as a companion publication to the substantial array of police reports the Commission has issued over 20 years, including its landmark publication, Who Is Guarding the Guardians? In the nearly 20 years since the publication of that report, new civil rights issues have emerged in the context of police practices. The topic of “racial profiling” by police officers is one example of these emerging issues. The report relies on facts and data presented in those reports in addition to the analyses and recommendations from leading experts in the field of police practices and civil rights, along with data from primary sources.
Much obviously needs to be done to improve police-community relations and to reduce incidents of police misconduct, including brutality and unjustified race-based stop-and-frisk practices. We salute the police departments that have employed successful approaches to decrease crime and police killings in their jurisdictions. Despite these accomplishments, even these departments will fail to gain the full confidence of the communities they serve until and unless there is an increased focus on police professionalism and civil rights protections. The report confirms that in the absence of police professionalism and proper training, an “us against them” culture is created on the force that does not discourage officers to use excessive force in communities of color.
We hope that elected and appointed officials will examine this report, heed the call to action, and work diligently to achieve the goals presented. We hope especially that prosecutors, who often face the brunt of pointed criticisms in police brutality investigations and prosecutions, will respond positively to the findings and recommendations. The report does not indict state prosecutors; rather it points out that there are ways to avoid “hopeless conflicts of interest” in handling these complaints through independent mechanisms assigned exclusively to police misconduct cases.
The Commission agreed to produce this report in the wake of a disturbing number of allegations reported to the Commission on police misconduct occurring throughout the nation, and particularly from New York City residents. In response, the Commission held a hearing in New York City to obtain facts regarding the increasing number of police misconduct accounts from residents following several well-publicized incidents, specifically the tragedies involving Abner Louima and Amadou Diallo. The Commission obtained information detailing the problems existing between the police department and city residents. As discussed in the published report following the hearing, Police Practices and Civil Rights in New York City, the Commission found that the country could benefit from an honest dialogue about police practices and civil rights. To that end, the Commission endeavored to update its leading publication on police practices, Who Is Guarding the Guardians?
In order to supplement Who Is Guarding the Guardians? the Commission invited several prominent experts to present information to the Commission and answer questions about the extent of the police misconduct problem, what law enforcement agencies have done to improve police services and reduce crime, and the changes required to reduce and eliminate police misconduct while protecting the communities they serve.
The expert information provided at the briefing, the dozens of other Commission reports on police practices, and research using primary sources all provided the basis for this report. Indeed, it compiles much information from other Commission reports that have already been approved and deemed sufficiently reliable to be released to the public.
Before the Commission approved this report, it received extensive internal and external scrutiny during several levels of review. Following the standard operating procedures of the Commission, the staff made necessary corrections, where appropriate, and added substantive new information to the initial drafts after conducting legal sufficiency reviews and receiving comments from Commissioners.
We believe this report will contribute to the protection of civil rights and the improvement of police-community relations.
Dissenting Statement of Commissioner Russell G. Redenbaugh
The Commission’s report on Police Practices and Civil Rights in America, which purports to update the 1981 Who Is Guarding the Guardians?, raises many of the same concerns that emerged from the Commission’s recent report on police practices in New York City: It lacks sound methodology and research; it tends to “profile” the police; and it proposes a series of flawed prescriptions for reform. In its Executive Summary, the report speaks of “the need for a reasoned, systematic approach to honestly and sufficiently address the problem of police misconduct”; yet, in this regard, the Commission sadly misses the mark.
Some specific concerns include the following:
Calling for “aggressive affirmative action,” the report criticizes the lack of employment of minorities and women as police officers, while ignoring the significant gains that have been made since the 1980s.
Lacking hard evidence, and relying on “perceptions” and anecdotal information from newspaper accounts, the report portrays the police as part of a “culture” that systematically engages in and tolerates abuse of the citizens they are sworn to protect.
Dismissing the importance of using background checks and psychological tests in the selection of police recruits, the report implies that agencies that implement these measures are engaging in racism.
Contradicting the goal of promoting reform in a way that enhances (rather than undermines) public trust in the police, the report proposes a number of heavy-handed recommendations for federal monitors, special prosecutors, and civilian review boards with subpoena power and the final say over local investigations of police misconduct cases.
Little Meaningful Change?
The report fails to give a clear picture of police reforms over the last two decades. On the one hand, it concludes that there has been “very little meaningful change” since the initial release of Who Is Guarding the Guardians? At the same time, the Chairperson of the Commission has also admitted, in recent press statements, that there has been “a lot of progress” since the 1981 report.
Certainly, there are many signs of meaningful change. In major cities like New York, for example, significant reductions in violent crime have been accompanied by a dramatic decline in police use of force. Additional meaningful changes have resulted from the proliferation of community policing programs and civilian review panels, the development of training strategies to improve law enforcement response and to reduce risk and liability, and the implementation of computer technology to enhance early warning capabilities. But the present report tends to downplay these signs of progress, concluding that better policing often has come “at a terrible price” for minority communities, “which seem to bear the brunt” of police misconduct. With this kind of sweeping indictment, the report demonstrates that it is not really interested in the data it purports to gather.
The discussion of police recruitment, selection, and training is a case in point. In its 1981 report, the Commission called for the increased hiring of minorities. Without attempting to verify the extent to which law enforcement agencies have followed this recommendation, the Commission asserts that its 1981 observation—that “serious under-utilization of minorities and women in local law enforcement agencies continues to hamper the ability of police departments to function effectively”—stands true today. However, a look at the available data reveals that minorities have made substantial gains as police officers.
For example, according to U.S. Department of Justice statistics, blacks composed 11.7 percent of the population in 1987, but only 9.3 percent of total police officers—a difference of 2.4 percent. By 1997, the gap virtually closed, with blacks being 12.1 percent of the population and 11.7 percent of police officers—a difference of 0.4 percent. Women have also made dramatic gains in law enforcement, as Professor James J. Fyfe testified at the Commission’s recent briefing. For example, in the Philadelphia Police Department in 1997, women held 22 percent of the sworn positions, almost a 1400 percent increase since 1979.
Certainly, much more remains to be done in regard to recruiting and retaining qualified police officers across the board. With the challenge of a tight labor market, police departments across the country have been struggling with an overall shrinking of the applicant pool. But the Commission’s call for “aggressive affirmative action” is not an effective response to the problems of low pay and low morale which, according to many experts and police officers themselves, pose the greatest barriers to recruitment and retention of qualified officers.
Maintaining High Standards
The report dismisses the importance of using background checks and psychological testing which assist in the selection of qualified police recruits. Without any in-depth discussion or evidence to back up its charge, the report finds that “biases” and “problems inherent in these examinations” may result in the elimination of minority candidates during the application process. Although the report stops short of calling for an end to these safety measures, it implies that agencies that implement them are engaging in racism. If use of these important tools is denied, the Commission’s call for a hiring process that develops “officers who possess sound judgment, good reasoning abilities, knowledge of the law and maturity” will be hindered.
Failure to hire qualified officers can have tragic consequences. Consider Washington, D.C., where the Metropolitan Police Department has a history of conducting inadequate background and psychological checks.  In 1999, several officers either pleaded guilty or were found guilty of the follow crimes: sexual abuse, extortion, aggravated assault, theft, kidnapping, stalking, bribery, obstruction of justice, fraud, tampering with evidence, making false statements, and filing false reports.
The case for maintaining high standards for new recruits is bolstered by the recent corruption scandal within the Los Angeles Police Department in which rogue officers were found to have planted evidence, beaten handcuffed citizens, committed perjury, and shot unarmed suspects. For years the LAPD has abandoned the use of polygraph tests and failed to perform meticulous background checks on its recruits. As a result of the LAPD’s failure to require high standards for its recruits, the civil rights of citizens were violated.
Law enforcement can be a matter of life and death—for both police and civilians. Given the complex and demanding job that communities require of police officers, we must insist on maintaining selection standards to ensure that candidates have the high moral character and ability necessary to perform that job. Lowering selection standards will not increase the ability of the police to protect civil rights and target crime.
Police Use of Force
In order to protect citizens, police officers are entrusted with the enormous responsibility of having the authority to use force, including deadly force, under certain circumstances. Decisions on use of force are affected by several factors, including the degree of threatening behavior displayed by the suspect, state laws, police department policy, and training. What we do know, from experts and police officers alike, is that the media portrayal of police brutality is often significantly different from reality. Although the cases of police shootings mentioned in recent headlines are dreadful, there is no empirical evidence that police brutality is rampant in the nation, as suggested by this report.
The report also errs in choosing to look at these problems mainly through the prism of race. For example, on the basis of anecdotes and “perceptions,” the report reaches the conclusion “that law enforcement officers disproportionately target [minority] communities because of misperceptions based on their racial and ethnic backgrounds, rather than crime patterns or citizen complaints.” The report implies that police shootings are primarily a racial problem, one that could be resolved by “diversity” or “cultural training” initiatives.
This appears to be an over-simplification of the issue. It is instructive to look at recent studies which indicate that incidents of police use of force (meaning both lawful and unlawful actions where an officer employs physical coercion) tend to be intraracial, meaning that the officers and citizens involved are more likely to be of the same race and ethnicity. In 1997, the fatal shooting of suspected black felons by black officers was almost four times higher than the fatal shooting rate of suspected black felons by white officers. The black police officer shooting rate of suspected black felons was 5.47 per 10,000 black officers, while the fatal shooting rate of suspected black felons by white officers was 1.41 per 10,000 white officers.
Flawed Prescriptions for Reform
Stressing “Culture” over “Competence”
In its tendency to point to selected, high-profile cases as examples of “incessant” police misconduct and endemic police racism, the report stresses “the importance of diversity” and the need to make law enforcement agencies more “culturally competent.” In a recent article on “How to Train Cops,” published by the Manhattan Institute, Heather MacDonald explains the dangers of the “cultural sensitivity” approach. From direct observation of a “cultural competence” course at New York’s Police Academy, Ms. MacDonald contends that these sessions are “wildly irrelevant to the real problems of policing.” Mandating such courses also represents “a huge opportunity cost” in terms of time that could be spent on instruction—particularly, communication skills—to improve police response to the situations confronting them every day, sometimes fatally. As Ms. MacDonald concludes: “Reality, not racism, is the biggest challenge for the police.”
By emphasizing culture over competence, the report misses the opportunity to provide any in-depth discussion of police training methods that have proven effective in enhancing the ability of police to deal with real-life situations without having to resort to the use of force. The NYPD’s “In-Service Tactical Training” and its “verbal judo” courses are just two examples of this kind of training. Effective and professional policing, not an irrelevant “cultural competence” curriculum, is the key to achieving the dual goals of crime reduction and protection of citizens’ civil rights.
External vs. Internal Controls
Another major problem is the report’s conclusion that since the “guardians” are unable to “guard” themselves (because of a “police culture” inclined to protect wrongdoers within the ranks), what is needed is wider use of “external controls.” In order to “police the police,” the report proposes a number of heavy-handed recommendations for federal monitors, special prosecutors, and civilian review boards with final say over local investigations of police misconduct incidents.
This kind of adversarial approach runs counter to testimony the Commission received at our June briefing from Hubert Williams, president of the Police Foundation. As Mr. Williams affirmed in his written statement: “While both internal and external accountability of the police are required, internal accountability is more effective at deterring police misconduct.” Mr. Williams went on to emphasize the need for innovative technologies such as the Risk Analysis Management System and the Quality of Service Indicator, which strengthen internal accountability through the collection and analysis of key performance-related data.
In its rush to release a draft version of this report just a few days before national elections, the Commission failed to seek the views of law enforcement experts in the field regarding the effectiveness of internal controls. The report elicited this reaction from Sheriff Brad Slater of Weber County in Washington State: “I found that in those cases where misconduct was substantiated, we as a law enforcement agency took a much sterner approach and disciplined more heavily than those looking from the outside in.” Sheriff Slater, who worked for many years as an internal affairs investigator, questions whether state or federal agencies would do a better job monitoring police conduct: “My power comes from the people. If I don’t do [the people’s] job, they have the power to remove me,” he explains.
State Prosecution as Inherently Biased
Another very troubling aspect of this report is its “profiling” of state prosecutors. Specifically, the report alleges that “local prosecutors are reluctant to prosecute the officers upon whom they must rely for the investigation and prosecution of criminal cases.” In other words, the Commission in this report is making the unsubstantiated charge that states’ district attorneys are generally either unwilling or unable to fulfill their sworn obligation to uphold the law. The report contends that because of the “biases” of state prosecution, “most officers who face criminal allegations will avoid any type of meaningful prosecution.” The solution proposed by the report is to divest local prosecutors of their authority in police misconduct cases and hand it over to special prosecutors “from outside the ranks of the law enforcement community” or even to federal monitors.
The report offers no solid, empirical evidence for making such a sweeping recommendation or for even alleging that such a problem exists. As New York County District Attorney Robert M. Morgenthau recently wrote to the Commission, to speculate that special prosecutors are needed because local district attorneys must work with the police on a routine basis “is merely further proof that the Commission has either failed to educate itself or has purposely ignored the facts.” Speaking for the efforts of his own office, the district attorney further explained:
The fact is that this Office has never hesitated from prosecuting corrupt or brutal police officers, as even a cursory examination of our record would demonstrate. Nor does our daily interaction with the vast majority of professional officers create any difficulty in our ability to uphold our responsibilities to prosecute those who use their positions for evil rather than for good. Indeed, the fact that we see the victims of police brutality and corruption underlines our commitment to prosecute those officers who betray their badges.
Removing the “Specific Intent” Requirement
Finally, I must strongly object to the recommendation to have Congress change the law on prosecuting police in federal court so that prosecutors would no longer have to show that the accused officer acted with a “specific intent” to violate someone’s civil rights. In resurrecting this recommendation from the Commission’s January 1993 Mount Pleasant Report, the report fails to acknowledge the objections that have been voiced previously to removing the judicially imposed “specific intent” requirement. In his separate statement to the Mount Pleasant Report, former Commissioner Carl A. Anderson rejected this proposal, citing Justice William O. Douglas’ opinion in Screws v. United States, 321 U.S. 91 (1945). As Commissioner Anderson explained,
law enforcement personnel are also citizens possessed of civil rights who are entitled, as they serve the community often in life threatening situations, to have adequate notice of the sweep of such statutes. To do any less may endanger both the lives of law enforcement personnel and the citizens they serve. Specific intent is a not uncommon requirement in statutes which carry the range of criminal penalties found in Title 18 § 242 [U.S. Code]. Given the lack of an adequate hearing record on this question, it is unwise in my opinion for the Commission to recommend a change in current law so fraught with potential legal consequences.
Commissioner Anderson’s objections remain valid today. In attempting to merely reissue such a sweeping proposal, without the benefit of any new or serious discussion, the Commission does a disservice to its fact-finding responsibilities.
Prejudice has no place in the enforcement of the laws of this nation. Police misconduct and racial profiling are morally reprehensible and an ineffective way to enforce the law.
While there is no question that police misconduct does occur, there is no evidence that points to an epidemic of such misconduct.
As Chairperson Berry recently affirmed, “policing and responsibility for the police is a local and state responsibility and not a federal responsibility.” This is consistent with a key finding in the 1981 Who Is Guarding the Guardians?:
“The public must have confidence in the ability of the police to police themselves.” The best way to “guard the guardians” is to enhance their ability to promote reform from within and to do so in a way that reinforces public trust in the police. Unfortunately, the recommendations in this report would undermine that goal. Instead of calling for federal monitors, special prosecutors, and more lawsuits, we should keep the emphasis on assisting police chiefs who move decisively to defuse tensions between the police and the people they serve before these conflicts result in costly and divisive investigations and court fights.
November 27, 2000
Analysis based on data from the U.S. Department of Justice, Bureau of
Justice Statistics, Law Enforcement Management and Administration Statistics
(LEMAS) survey, and the U.S. Census Bureau.
Cheryl W. Thompson, “Convictions Rise Among D.C. Officers,” The
Washington Post, Jan. 12, 2000, p. A1.
William Booth, “LAPD Admits Poor Management, Lax Supervision;
Culture of Mediocrity Blamed for Police Corruption,” The Washington
Post, Mar. 2, 2000, p. A3.
Heritage Foundation calculations based on data from the Federal
Bureau of Investigation’s Uniform Crime Reporting Program [United States]:
Supplemental Homicide Reports, 1997 and the U.S. Department of Justice,
Bureau of Justice Statistics, 1997 LEMAS Survey.
Letter from New York County District Attorney Robert M. Morgenthau to U.S.
Commission on Civil Rights, Apr. 28, 2000.
Commissioner Carl A. Anderson, statement, Racial and Ethnic
Tensions in America: The Mount Pleasant Report, January 1993.