Wednesday, February 6, 2013

Why Do Cops Lie?

This New York Times op-ed from Michelle Alexander, author of The New Jim Crow, is sure to push the buttons of almost anyone who's been to trial in an American court.

It's called "Why Police Lie Under Oath" -- and if you think police never do, you're not alone.  Most people who end up in a jury box feel the same.

Alexander explains:
Thousands of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”
But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”
I can't tell you how many distraught phone calls I've gotten from people telling me the cops lied at their loved ones' trials -- about how much drugs were sold, how much money was made, who owned the gun, who organized the deal ... and on and on it goes. If even a fraction of the complaints I hear are true (and I can't say either way if they are), there's a lot of lying going on in American courtrooms, and it's not coming from the defendant.

Alexander explains the incentives that drive lying:
Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.
And lest we forget, lies destroy lives:
One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.
Could ensuring that a person gets a mandatory minimum sentence also be a motive for lying?  After all, mandatory minimums depend on the weight and type of the drug involved.  If a person only sold a cop 20 grams of crack on one occasion, but the mandatory minimum of five years doesn't apply until the person sells at least 28 grams, might that be an incentive for police to fabricate another drug transaction, to make up the difference?  No such lying is even necessary in the case of a drug conspiracy.  Our relevant conduct rules make one person in a conspiracy guilty for everyone else's drugs, too -- and those facts don't even have to be proven to a jury by proof beyond a reasonable doubt.

At least when it comes to law enforcement lying about drug quantities, one solution is to get rid of mandatory minimum sentencing laws, which are triggered by certain drugs at certain weights.  Perhaps a whole new approach to drug sentencing is needed -- one that moves away from sentencing being driven by drug type and weight and that gives equal or greater consideration to a person's role, motive, actions, and profit.