TheAgitator.com
In Which I Announce My Support for an Unfunded Federal Mandate
Monday, January 21st, 2008I see plenty to like in this bill.
It would force states that receive federal crime fighting money to keep better track of statistics regarding deaths in police custody.
A similar bill was signed into law by President Clinton in the 1990s that required states to keep track of police shootings, but lacked any enforcement mechanism. So most of the states just ignored it.
The problem, of course, is that while police departments and state governments are excellent at reporting the number of police officers killed on the job every year, they’re pretty lousy at keeping track of the number of people who die at the hands of the police, justified and otherwise.
Same goes for botched raids. In the past, pro-SWAT groups have criticized me for relying on newspaper accounts and federal lawsuit filings to try to document and count the number of mistaken raids over the years. Thing is, that’s really the only way to document them. I’d love to rely on police records for that data. But in most of the country, they don’t exist. One of my main recommendations in Overkill was that every search warrant be tracked in a searchable database, from the time it’s requested through its execution. Records should include what police thought they’d find, what they actually found, what happened to the suspect, and what tactics were used to serve the warrant. They should also probably include some sort of code identifying any informants used, though that could be redacted if the other information were to be made public (and I think the entire database should be subject to FOIA requests). And of course, if a warrant is served on the wrong house, that should be documented.
I don’t see any federalism problems with these requirements, either. If state and local governments are doing an inadequate job protecting the civil rights of their citizens, the federal government is obligated to intervene under the Fourteenth Amendment.
As the idea of big, powerful, intrusive government has pervaded policy discussions, an idea has emerged that oversight or transparency is a sufficient cure for the problems that small-government advocates deem unsolvable. They aren’t. The solution to a tyrannical police is not documentation.
“Records should include what police thought they’d find, what they actually found, what happened to the suspect, and what tactics were used to serve the warrant.”
I commend the idea. Why does my cynical nature give me a twinge and begin to suspect that at least some police would begin to make sure they do find what they expected? Some might even begin to prepare “scripts” for various situations to cover their errors. Of course, that is not so different from how some already do things after a questionable raid — long delays for the “internal investigation” to take place, where the police were never in the wrong.
Brian,
I find myself a bit puzzled by your comment. Currently the vast majority of the excesses wrought by our increasingly militarized police forces go un-recorded, the officers who betray their duty and the public trust unpunished.
How can the first step towards overcoming this culture of cover-ups and secrecy be anything other than dramatically increased transparency? Only with transparency and tracking can we begin to assess the scale and the scope of the problem and begin to understand the damage that has been wrought on our free society.
How, precisely, do you think that Scalia was able to justify his belief in the “new professionalism” of a national police force that at times seems anything but professional. (professionals do not treat their public trust as a license to engage in petty tyrannies. professionals do not place a higher value on group loyalty than on integrity and competence)
Clearly the first step must be to require that the single most direct threat to personal liberties that most Americans ever face be required to document and justify its actions on the public record. As you state, it won’t solve the problem by itself. But it is the absolutely vital first step so that all of the other solutions might thrive.
Technically, not an unfunded mandate if it attached the reporting requirement to the doling out of government funds. It then falls within one of congress’ legitimate purposes as enumerated in the Tax and Spend clause of the Constitution.
Prof.
Death in Custody Reporting Act of 2007 – Requires states that receive certain criminal justice assistance grants to report to the Attorney General on a quarterly basis certain information regarding the death of any person who is under arrest or is in the process of being arrested, en route to incarceration, or incarcerated in state or local facilities. Imposes penalties on states that fail to comply with such reporting requirements..
Requires the Attorney General to provide for and report to Congress on a study of the information on deaths of persons in custody.
Looks like congress has attached the reporting requirements to criminal justice grants that states are already receiving.
Looks like a good idea, will it actually work?
Dan,
Transparency will unveil the depth of the problem, but in the end, the depth of the problem is only useful as trivia or, at best, as marketing towards fixing the problem. Police misconduct, abuse of prosecutorial discretion, and collusion with judges cannot and will not be solved by record-keeping. Even if the records reveal injustice, or if other evidence surfaces that prove some records are fabricated, who will prosecute the police? Who will sentence them?
I thought it was important to point out that oversight will not provide a way for us to have our cake and eat it, too.
The better solution would be to stop giving federal money to local police forces, to repeal asset forfeiture laws, and to end no-knock warrant raids.
The current bill seems a lot more likely to pass and may shed some light on policework.