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Monday, October 09, 2017

On Not Thinking Much About History

The Department of Justice’s January 2017 report on the Chicago police department prompted me to reflect on how policy makers often ignore the historical context that shapes the issues that they wish to engage. In this post, I want to talk a bit about how that sort of inattention was manifested in that particular report. In a latter post, I hope to explore the larger question.

I should begin by admitting that there is much to admire about the report, especially now that events and decisions in D.C. and Chicago have made it less likely it will have any actual impact.  Prepared in a little more than a year, the report rests on an extensive investigation that spanned 300 days of interviews in Chicago. DOJ researchers visited each of the city’s 22 police districts, interviewed officers and commanders, and went on ride-alongs with police officers. The researchers talked with officials of Chicago’s various police unions, met representatives of 90 community organizations, and held several community forums. They also reviewed training documents, reports on policing in the city, and Chicago’s police misconduct complaint database. Finally, the researchers met with local lawyers and activists working on police misconduct in Chicago, and consulted current and former law enforcement officers from around the country (Report, p. 2).

And all that evidence is arrayed to substantiate the report’s damning conclusion that a significant number of Chicago’s police officers engaged in unconstitutional or illegal use of lethal and nonlethal force, as part of a pattern of discriminatory or harassing interactions with people of color and members of Chicago’s LGBTQ communities. The report also provides ample support for the charge that Chicago’s police have a code of silence and culture of lying designed to undermine investigations into misconduct.

It is also the case that the analysis offered in the report is complex. It traces the use of lethal and nonlethal force from actual police practices, through the failures to train and mentor that helped establish those practices, to the lack of discipline that institutionalized the practices. Its treatment is evenhanded, exploring the impact police misconduct has on its most frequent victims, Chicago’s communities of color and LGBTQ population, while also considering the effect poor training and lack of discipline has on members of the police department. Indeed, the report’s discussion of the Independent Police Review Authority (IPRA)’s failures to investigate and discipline officers, makes it clear that just how related these problems are. Bad investigations by IPRA have destroyed citizen trust in the department, especially in the communities hardest hit by the police abuse. At the same time, the erratic discipline IPRA has meted out discouraged officers who tried to follow the rules, encouraged the creation of a department culture that favors silence, lies, and concealment (p. 8, 51-52), and sabotaged efforts to create standards of acceptable practice.

But ultimately the report fails. And it does so because it does not consider the larger context in which these problems have arisen. Its discussion of discipline ignores the work of scholars like Barry Friedman, whose recent work Unwarranted: Policing Without Permission, documented how decades of court decisions have made it harder for aggrieved individuals to bring police misconduct claims. Friedman’s study pointed out a trap created by the late Justice Scalia's jurisprudence on the Fourth Amendment. On one hand, the justice often voted against application of the exclusionary rule, on the theory that wrongful searches could be redressed by claims for money damages. On the other, Justice Scalia often voted against civil rights claimants who sought damages for wrongful searches and seizures (Friedman, 137). Victims of police misconduct in Chicago have found themselves caught in a similar bind. The legal retrenchment Friedman described have made it harder for them to press successful claims in court, while the failures of the review boards documented in the DOJ Report have meant they have little hope of obtaining administrative redress.

That failure, in turn, is exacerbated by another situation well-documented in another study by the Chicago Reporter. The Reporter’s investigation revealed that Chicago’s law department typically has settled police misconduct charges.  The consequence, as the Chicago Reporter put it, is that those “cases conclude as they occurred—outside the public glare.” Because settlement awards were typically confidential, Chicago residents are kept unaware of the scope and cost of police abuse. The secrecy also make it difficult to for individuals to establish persistent wrongdoing by individual officers. Again, none of that appears in the DOJ report.

These are not the only places where examining the recent problems tbe report described from a broader, historical perspective would have improved the report’s analysis. The discussion of abusive arrests in the report (p. 51), would have benefitted from consideration of Rights in Conflict, the report on the violence at the 1968 Democratic National Convention. Engagement with the Kerner Report on racial unrest in 1967 would have given depth to the DOJ discussion of tensions between Chicago’s police department and the city’s communities of color (p. 15). The discussion of the culture of silence and lies (p. 8) would have been strengthened by considered of Nicole Gonzales Van Cleve’s recent study of criminal justice in Cook County. And ultimately, the entire report would have been stronger if the DOJ had actively engaged the historic problem of racial and economic segregation in Chicago, since that enabled the police to treat residents of Chicago’s various communities in the very different ways the report describes.

The report’s narrow focus seems to have been deliberate. Prompted by the outrage that followed the city’s efforts to prevent investigation into the police shooting of Laquan McDonald, the Department of Justice chose to focus on lethal and nonlethal force, and the ways in which the Chicago police department dealt with that problem (p. 1). The narrow scope meant the report largely ignored the department’s long, tragic history of police torture and failed to explore whether the two problems were related. Yet as the Wickersham Commission pointed out in the 1930s (p. 127), and the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Punishment has recognized more recently (Art. 1.1), torture can involve either physical or mental abuse used to obtain confessions or violence used to coerce or intimidate a person during an arrest. So too, the report’s discussion of community mistrust of police (pp. 4, 15) should have considered whether Chicago’s campaign to deny police torture contributed to the problem.

Posted by Elizabeth Dale on October 9, 2017 at 11:10 AM | Permalink

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