The Justice Con

-- By AndrewCase - 26 Feb 2009

I. The Question

Is money at the heart of every con, or can the machinery of the con be used elsewhere? Can the mark be conned out of justice?

II. Find Something Wrong

A. New York City Police Misconduct - A primer

Every twenty years there is a big enough scandal in the New York City Police Department to support reform. Officers no longer buy promotions, thanks to the Lexow Commission in 1895; Lindsay did his best in the 1960s, and after Frank Serpico testified, the Knapp Commission blew the whistle on carrying the bag. But as recently as 1988, if you camped out in a park to protest curfew laws, officers were likely to stream in, electrical tape masking their badge numbers, and simply beat the hell out of everyone until the park was clear. Tompkins Square gave Broadway Rent and gave the city its Civilian Complaint Review Board.

B. The Problem Now

Most NYPD officers no longer take or give bribes (and those that get caught actually now face consequences), but they still stop hundreds of thousands of kids on the street, and when the kid turns his head around while he’s spread-eagled on the wall and complains, they still smack him with the radio and watch the Motorola Shampoo streaming down his ears. The behavioral economists can tell us why stops have gone up so much, but can’t tell us what we ought to do about it.

1. Sticks

Since the data on UF-250s (stop and frisk forms) has been captured at Compstat, captains will get chewed out at their monthly meetings if their officers’ “productivity” lags. So they tell the line officer that if he doesn’t do at least twenty stops a month, he won’t make the SNEU team, or narcotics, or homicide, or whatever specialized unit the cop wants to make.

2. Carrots

When someone an officer stops on a hunch or a whim files a complaint, and an outside civilian agency finds that the stop was improper, the officer still isn’t going to be punished. So if a cop has her eighteen stops and it’s the end of the month, there is nothing to stop her from yanking the next kid ambling into the drug-prone location, whether her suspicion is reasonable or not.

3. The Result

From 2003-2007, although the NYPD was required by City Council ordinance to report quarterly stop and frisk data, it did not. When it finally released the data in January of 2007, it showed there had been a five-fold increase in stops conducted.

III. Do Something About It

A. The Civilian Complaint Review Board

You find the whole racket unjust, so you take a job investigating police brutality at the brand-new, fully legitimate Civilian Complaint Review Board, given subpoena power, civilianized investigators, and the stamp of municipal approval after two weeks of contentious hearings in 1993. You investigate, your investigation is submitted to an all-civilian board, and if they find that the officer was out of bounds, they recommend that the police commissioner discipline him.

B. The Con

So the kids who have been stopped come to talk to you, and you take their statements, and you subpoena records, and you interrogate cops, and when you find that stops were pretextual you say so, and even if the board agrees, the officer receives no discipline. The game is rigged – the city doesn’t want to punish the cops, it only wants to give people a place to go and vent and feel that something will be done about it.

C. The Robespierre Effect

And this is all I meant when I brought it up before. The NYPD decides that the answer to the Sean Bell shooting is to hand out more Tasers. NYPD officers are not properly trained to deal with the mentally ill. So when a lieutenant confronts a mentally ill man on the awning of a Bodega, and orders his officers to Taser him before the ESU unit arrives, and the man falls to his death, you see injustice. You want to go after this guy who has clearly violated department regulations. Maybe you even whisper around about the cop’s less-than-stellar record. Then This Happens. Have you promoted justice? Or were you better off running the con?

D. The Con Reconsidered

The kids keep coming back. They know that the commissioner isn’t firing the cops who throw them against the wall. They know that the policy of the police department, stated or no, is to intimidate and search the population of East New York, Highbridge, and the Rockaways so that the people of Elmhurst, Bay Ridge, and the Upper West Side can feel secure. What they are really after is not the punishment that you want to mete out. They are looking for the relationship between two human beings. They want to sit down at a table in an office with the seal of the City of New York on the front door and tell someone that what happened to them was wrong, even if that person can do nothing about it.

So maybe it isn’t a con, because the kid doesn’t think that the brick you’re selling is made of anything but brass. Or maybe the con is on you, because you think that you’re there to change something, to effect justice, to make a difference, but your role is just to keep the backlog down and send the casefiles on.

Or maybe we need to reconsider how important that face-to-face you’re giving the kid really is. Maybe giving someone the power to tell their story, and to really listen to them when they do it, is the real justice. Maybe the only person who ever thought about punishment and vengeance was you. Maybe you should turn an ear to what people really want, and all people really want is a person who can turn an ear.

• Or something in between. Even if citizens expect nothing more than the dignity of being heard, and even if we understand that the leeway given to the police is always going to lie outside the limits of discretionary enforcement applied to non-police, there are cases that will offer opportunities for social process to improve. The question is whether the CCRB can find tools that work at changing police behavior more effectively than attempts to punish officers who have gone to the margins of the gray zone too often.

• Donald Black would say that there is less law that applies to police than to other persons, but that doesn't necessarily mean impunity. Treating the lieutenant as a criminal in the tasering case may not be the result we want: the failure was in having no other styles of response available than impunity and prosecution. One doesn't become a captain by taking responsibility for matters that can legitimately be blamed on someone else, so the lieutenant is left to pay the price for failures of the precinct and the force. If Ray Kelly sees both carrots and sticks for increasing the department's capacity to treat mentally disturbed citizens more competently, he can make it happen. The funeral of a lieutenant is just an opportunity to bond with the union leadership.

• I don't think there's anything much you need to do with this piece. It's well-crafted and economically put together. More substantive consideration of the dignitary importance of the right to be heard would be desirable, but that's another essay.