1/5/2011

By Emily Smith

            In general, the goal of the American legal system is justice.  As a community, we want to get the “perp,” right the wrong and restore our sense of order.  We put bad guys behind bars to keep the rest of us safe.  But justice also requires providing those accused of crimes with a fair and appropriate adjudication of their guilt.  They are not only given, but informed of their rights to counsel and silence, and they should have the right to due process upheld at each step.  Justice, therefore, means avoiding mistakes.  It keeps those who are innocent out of the criminal system, and its utmost end is to find the truth.   However, if you have been reading the Chicago Tribune lately, you would be forgiven for forgetting that simple goal.

            While Chicago police have often been accused of questionable tactics, former Chicago police Commander Jon Burge epitomizes this nasty reputation.[1]  For years, Burge inflicted heinous torture on criminal suspects and singlehandedly shook public confidence in law enforcement and the criminal justice system.  According to testimony at his recent trial for obstruction of justice, Burge would smother suspect with bags, or shock them on the genitals, always being careful to avoid any markings of abuse. 

            Burge is not alone.  PBS recently aired a profile on “Frontline” about the Norfolk Four, the group of men convicted of the brutal rape and murder of a Virginia woman in 1997.[2]  The case against them seemed airtight at the time: each man confessed to the crime multiple times!  Yet, the truth was these confessions were only extradited after hours of coercive interrogations instrumented by retired Detective Robert Glenn Ford.  None of these men were involved or connected to this incident at all.  Ford, on the other hand, was found guilty of extortion last month for accepting bribes from criminal suspects. 

            Clearly, there is a breakdown between the high-minded goals of the legal system and the practical realities of the precinct.  While the process seeks justice, for police, the goal is arrest.  Once the arrest is made, the crime is cleared from their desks.  It is recorded within police statistics as “closed,” and it officially becomes someone else's problem. 

            The trouble with this goal is the incentive it creates for police.  With a different “end” in sight than prosecutors, defense attorneys, judges and juries, police are free to use different “means.”   This gives them license to arrest a criminal without regard to the larger sense of truth, or right and wrong.  Whether the purported bad guy ends up in prison or back on the street is almost irrelevant.  There will always be crimes to solve.  Today's task is creating enough probable cause to make another arrest and to clear one more case.  While the victim's and community's sense of justice may be short-lived, the policeman has served his duty.  Consequently, for police, the world is framed by an “us” versus “them” mentality, rather than “fact” and “fiction.”

            If the goals of the police department were more in line with those of the rest of the system, this incentive could be avoided.  Police would be required to wait for conviction of their suspect in an open and adversarial courtroom before it could be included within their clearance rates.  Thus, police would have to consider more than mere probable cause.  Their goals would have to include the admissibility of evidence and any reasonable doubt of the perpetrator's guilt.  They would have to consider the finding of truth rather than just putting on the cuffs. 

            The problem with this remedy, however, is it encumbers police with the consequences of others' actions.  Once the arrest is made, and the file moves to the prosecutor's desk, little control of the case and its outcome is left to police.  The elements that often affect whether there is ultimately a conviction may have absolutely nothing to do with the policeman's work.  Thus, requiring police rely on the Fates for their work to be measured and evaluated seems unfair and burdensome.

            Nevertheless, clearance rates are a notoriously bad indicator of police performance.  The metrics from jurisdiction to jurisdiction are too dissimilar to give any kind of comparative meaning to law enforcement's achievements.  Thus, if it is meaningless anyway, why should it matter if the metric changes from arrest to conviction?  Changing the rubric could at least change police incentives and it could prevent police like Ford and Burge from trying to get an arrest at all costs.