Jeffrey D. Stein is a public defender in the District.
This month, the Justice Department released a report confirming what Baltimore residents have long known: The city’s police department suffers from rampant racial bias. But the problem of police misconduct is not limited to Baltimore or the nearly two dozen other cities under investigation by the Justice Department. The nationwide epidemic persists, in large part, because of laws and policies that screen police misconduct from public view.
For an example of how jurisdictions across the country obstruct public access to misconduct information, the Justice Department need look no further than the District, where I work as a public defender. In Washington, police misconduct files are kept secret by the D.C. police department and the Office of Police Complaints (OPC), an entity charged with investigating certain types of misconduct.
The OPC is required by statute to be independent of the police department, yet like many police oversight bodies, its objectivity is questionable at best; of the 526 complaints closed in fiscal 2015, only eight resulted in sustained findings of misconduct. Although the OPC publishes its final decisions online, it redacts officers’ names so there is no meaningful way to monitor individual officers.
The OPC also will not disclose officer misconduct information in response to Freedom of Information Act requests, citing officers’ privacy interests. Likewise, the Metropolitan Police Department does not disclose information related to misconduct — whether investigated internally or by the OPC — to the public at all. While officers are certainly entitled to privacy in their personal lives, their uniquely powerful and public professional role means that community members have a special interest in knowing when they break the rules. Keeping misconduct secret shields officers’ misbehavior from public scrutiny and enables unscrupulous officers to continue operating without accountability to the communities they serve.
The nation’s capital is not alone. According to a review by the New York public radio station WNYC, in 23 states, police-misconduct information is effectively confidential. In 15 states, misconduct information is mostly kept from the public except under certain circumstances — for instance, in cases involving particularly severe disciplinary actions such as suspension or termination. That leaves just 12 states in which police disciplinary information is generally available to the public. When legislators in restrictive states try to implement more common-sense disclosure policies, they face fierce opposition from the law-enforcement lobby. Just last May in California, police unions joined forces with prosecutors to defeat a bill that would have made those records public.
In criminal cases, access to misconduct information is critical — and constitutionally mandated — so that jurors can make informed decisions about the credibility of testifying officers and their investigations. These materials are all the more essential in the countless gun, drug and assault-on-police-officer cases in which officers are the only witnesses. In those cases, the phenomenon of “testilying” — lawyer speak for police perjury on topics such as whether a defendant resisted arrest, tossed a gun or bag of drugs before officers found one on the ground, or made an unrecorded confession — is not uncommon.
Unfortunately, even well-meaning prosecutors often fail to make accurate disclosures about officer witnesses because of reliance on error-ridden internal databases. I have seen complaints mistakenly labeled as not sustained (and therefore not disclosed to the defense) that defense investigation later revealed had been sustained, and egregious conduct miscategorized as minor. In one case, I did not learn until months after a trial that the lead detective in the case had been previously found by a judge to have lied under oath. Even then, my discovery was accidental in an unrelated case — not through any disclosure by the prosecutor. If documentation of the officer’s lying under oath had been public, I could have found and examined it myself prior to trial instead of relying blindly on a prosecutor’s search of an unverifiable and faulty internal database.
When it comes to police misconduct, transparency serves the interest of everyone — not just wrongfully accused defendants who could use the information to rebut the testimony of untruthful officers. It benefits the many officers who do their jobs correctly, as they gain community members’ trust and cooperation without having their reputation spoiled by the bad apples. It benefits police departments that can more easily spot officers with troubled track records — such as the Chicago police officer who killed Laquan McDonald — and remove them before they make unerasable mistakes. It benefits prosecutors whose duty, as the American Bar Association Model Code of Professional Responsibility states, “is to seek justice, not merely to convict.” Most important, it benefits communities by empowering them to police their police.
The problems documented by the Justice Department in Baltimore are extreme but not isolated. When police misconduct is properly monitored and made public, rather than guarded by opaque administrative bodies and broken internal tracking systems, policing practices change for the better. Communities become safer. Prosecutions become more honest. And, as civilians, we become able to trust those enforcing the laws to protect us, rather than worrying about whether we need to be protected from them.
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