How ‘good faith’ creates bad policy

Over at The Week, Andrew Cohen makes an important point about good faith in the criminal justice system:

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions. To even say this, I realize, is to cross some sort of decorous boundary that proper lawyers and judges are still conditioned to observe. But here we are. I am no longer a believer in the presumption of “good faith.” I’ve simply seen too much evidence of bad faith.

My epiphany on this has come rather recently, I’m afraid to say, in just the past few years, as I have covered some of the worst excesses of capital punishment in America. State officials who are supposed to be neutral functionaries when it comes to crime and punishment instead reveal themselves to be unrepentant, unremitting, unconscionable agents of death. Judges who are sworn to uphold the Constitution instead lean over backward to justify and implement unjust, unconstitutional results . . .

I was taught that it was bad legal reasoning, not to mention poor manners, to challenge the motives or “good faith” of public officials. I see now that I was taught wrong. The death penalty in America, indeed the entire criminal justice system, is worthy of trust and respect only to the extent that the men and women running it act honorably and in good faith, even if it means they take positions with which they do not personally agree. Think here of John Roberts’ famous “umpire” analogy. Now imagine that umpire calling only balls for one team and only strikes for another. The truth is that our justice systems are full of men and women acting in bad faith under color of law, and it’s time we all stopped pretending this isn’t so.

That’s a pretty cynical view. And I think he’s right. But let me try to provide at least a sliver of optimism.

Much of this boils down to a failure to understand and appreciate the trappings of public choice. We tend to assume that public employees always act in the public interest — or at least we write our laws and structure our government in a way that assumes it. But there’s nothing transformational about a government paycheck that turns the name on the “payable to:” line into an altruist. This isn’t to say that government employees are especially evil or awful or terrible, only that they’re just as human and fallible as anyone else. Yes, some areas of government attract and reward certain traits and personalities, and that in some cases this is a bad thing. For example, I think that the profession of politics in general attracts and rewards the very sorts of people we should least want running the country. (I’m a libertarian. I would think that.) But these problems all exist in the private sector, too. We’re just better at recognizing them there.

The fact that the criminal justice system is run by fallible human beings wouldn’t be such a problem if we recognized it, made sure that the system was governed by checks and balances to compensate for it, and structured internal incentives in a way that ensured we were delivering just and fair outcomes as often as possible. But that isn’t what has happened, mostly because our political discourse hasn’t allowed for it.

Progressives tend to be dismissive of public choice theory in general. Conservatives tend to buy into it, except when we’re talking about criminal justice. For whatever reason, conservatives have long believed that while EPA or FDA bureaucrats are susceptible to the trappings and corruption of power, somehow cops and prosecutors are immune to it. (Though this view is changing on some parts of the right.) The far left is much more skeptical of police and prosecutors, but the more mainstream left — the politicians and TV pundits — is just as deferential as the right.

Unfortunately, it’s the politicians who make policy. Naturally, most politicians are either skeptical of public choice theory or oblivious to it. After all, every politician is himself a public servant, and believes he or she obviously got into the profession for only the noblest of reasons. These are the people who make the laws that govern the system, and the people who are supposed to provide oversight and accountability when things go wrong. Throw in the influence of the police and prison guard unions and prosecutors’ associations, and the massive law-enforcement pork available for congressmen to bring home to their districts, and you remove any political incentive for an elected official to position himself as a criminal justice watchdog.


In this March 30, 2014 file photo, riot police stand guard near a crowd protesting police shootings in Albuquerque, N.M. As this city of 550,000 continues to see public demonstrations over a rash of police shootings, activists say they are looking to New Mexico’s history of resistance and previous protests to draw attention to what they said are major problems within the police department. (AP Photo/Russell Contreras, File)

Consequently, we have a criminal justice system that not only doesn’t compensate for public choice problems, it tends to view public choice theory as an insult to its very integrity. This is particularly unfortunate in policing, prisons, and the death penalty because the consequences of human failing are so profound. We’re talking about life, liberty and death, here.

But it’s worse even than all of that. Not only does all of this produce policies and incentives that fail as checks and balances against potential abuses and that simply assume abuses don’t happen — and that police, judges, and prosecutors will always act with integrity — it can also produce policies, court rulings and laws that encourage the very abuses we should be guarding against. A few examples:

  • Not only do many police agencies fail to emphasize community service, not only do they fail to screen aggressive or abusive personalities from the job, they actually emphasize aggression, violence, and confrontation in their recruiting videos. They’re actively looking for the very personalities they should be weeding out.
  • As Cohen points out, the courts are reluctant to second-guess the motivations of law enforcement officials. The most notorious example of this is the collection of cases that provide a “good faith exception” to Fourth Amendment violations. Instead of guarding the rights of citizens not to be subjected to illegal searches, the courts have chosen not to “punish” police who unintentionally violate those rights. But if a police officer says the violation was unintentional, the courts have put the burden on the plaintiff to prove otherwise. The practical result of many these decisions is to draw a roadmap for rogue cops to violate the Fourth Amendment. Just claim that you made a mistake. And since cops tend to be rewarded for making arrests that lead to convictions, the cops who follow the roadmap have a professional advantage over the cops who don’t.
  • Not only do courts and bar associations fail to adequately police and punish rogue prosecutors, a prosecutor’s performance is generally measured exclusively on his or her ability to put lots of people behind bars. Yes, there are conscientious prosecutors who decline to charge someone in the interest of justice all the time. But deciding not to charge someone isn’t the sort of thing a prosecutor boasts about in a press release, touts when running for reelection, or that attracts headhunters from high paying white-shoe law firms. Every incentive nudges prosecutors toward charging as many people as possible with the most serious charges possible to seek the longest sentence possible. Between impotent bar associations, courts reluctant to sanction, and prosecutors’ absolute immunity from lawsuits, there’s little to no risk of punishment for going to far. Yes, there are lots of good prosecutors out there. But why should we make it hard on them?
  • Similarly, the doctrine of qualified immunity holds that even when a police officer does violate your constitutional rights, the rights he violated must have been “well-established” at the time he violated them. Think about how that might affect how police agencies respond to an emerging constitutional issue, like whether or not we citizens have a First Amendment right to record on-duty police. As of today, the highest court in every jurisdiction in the country to rule on the issue says we do. But there’s still a lot of confusion on the issue. For police unions, police bosses, prosecutors, and police officers who don’t like the idea of citizens recording cops, then, at best there’s little incentive to keep police officers abreast of the latest court rulings. We of course want cops who know and apply the latest court rulings that protect our rights. In fact, if we’re going to tolerate error, we should tolerate on the side of being too deferential to constitutional rights. Yet qualified immunity, at its worst, may actually provide an incentive for police to perpetuate misunderstanding and ambiguity on this issue, to forestall the right to record from becoming an “established right” for as long as possible.

The good news is that these are all fixable problems. Court decisions on constitutional rights only provide a ceiling for government power. If it wanted to, Congress could pass a law next week to rein in qualified immunity. State legislatures or city councils could easily pass laws to protect privacy above and beyond the minimum protections of the Fourth amendment.

The challenge is getting these institutions to want to pass such measures or make such rulings. Politicians are ultimately interested in getting reelected. The bad policies we have today are mostly a reflection of public sentiment and public fear of crime in the 1970, 1980s, and 1990s. (In theory, our Constitution insulates our most important rights from the whims of democracy. In practice, it’s been some pretty cheap insulation.) But public opinion is shifting on these issues. Aided by the Internet, the proliferation of independent media, “cop watch” sites, and sites that track injustice has not only given us outlets that bring attention to these issues, but those outlets have also forced more mainstream outlets to do so as well. In the decade or so that I’ve been covering police militarization, for example, I’ve noticed a significant shift in the way local newspapers and TV stations cover the issue. There is noticeably more skepticism today.

Moreover, DNA testing, smart phones, social media, and other advances in personal technology all have imposed new transparency and accountability on the criminal justice system. It has also made us more skeptical of power. I don’t know that we’ll start to see some of the more dramatic reforms like changes to immunity protections until and unless people actually start voting on those issues. (But even that is starting to happen.)

Perversely, trends like overcriminalization and the militarization of regulatory agencies may help expedite that process. It’s an unfortunate truth that we won’t see major changes until these issues start to affect groups of people with some social clout and political power. But that’s happening. (It’s telling that the first state to pass a SWAT transparency bill only did so after a SWAT team mistakenly raided the home of a mayor.)

So things are already improving in some areas. In others, it will probably need to get worse before it gets better. But in those areas, it is getting worse. That’s about the best I can do for optimism.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko | May 22