Changing The Culture

According to a new report, police and prosecutors are starting to get more involved in exonerating the innocent:

Law enforcement officials either initiated or cooperated in more than half of the 63 exonerations recorded during 2012, according to the National Registry of Exonerations, a year-old collaboration between the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.

. . .

“We see a clear trend,” said Michigan law professor Samuel Gross, editor of the registry. “This is as it should be. The purpose of law enforcement is to seek truth and pursue justice. I’m glad to see they are now doing so more often after conviction, to help correct some of the terrible mistakes we sometimes make.”

One of the main problems with the culture of law enforcement is that they often don’t view their job as encompassing the “innocence” function.  In other words, both police and prosecutors have a tendency to adopt the “crime fighter” mentality, and after seeing a few horror shows, they begin to have a lot less sympathy for criminal Defendants than they otherwise would.  “Tell it to the judge,” the old saying goes.  Or my personal favorite, “That’s the Defense attorney’s job.  My job is to prosecute cases, not defend them.”

The Supreme Court long ago recognized that law enforcement has a corrupting influence on the people who participate in it (see link below).  When you work in law enforcement, you come across a lot of unpleasant situations.  On a good day, you see humanity’s inherent flaws.  On a bad day, you see ugliness on a grand scale.  And when you only see the bad side of humanity on a regular basis, it has a tendency to alter your opinion of humanity writ large.  As Nietzsche said: when one stares into the Abyss for too long, it begins to stare back at you.

This phenomenon leads to institutional incentives that pervert the law enforcement function.  It warps from a genuine “search for truth” into a competition where the only thing that matters is winning.  It is part of the reason why the Founders saw fit to place constitutional restraints on police power: the very purpose of the Fourth Amendment is to check law enforcement as they engage in “the often competitive enterprise of ferreting out crime.”

The problem is that courts often give far too much deference to law enforcement because they know that the job of police is inherently dangerous.  They also know that it would be impractical to ask police to enforce the law, and then to ignore a crime in progress simply because the police officer can’t prove it with anything but their own testimony.  There is an unspoken policy decision in most criminal courts in America that when a police officer testifies, the court will assume he or she is telling the truth, unless there is some obvious impeaching evidence to the contrary.

Police and prosecutors also don’t like admitting that they’re wrong.  To ask law enforcement officials to re-examine a conviction is to question either their competence, their integrity, or both.  This reluctance to question convictions, combined with the competitive nature of the law enforcement profession, leads many law enforcement officials to simply ignore the back end of criminal justice.  Once they’ve built their case, and obtained a conviction, their job is done.  Let the defense attorneys and public interest firms sort out the collateral damage.

But things being what they are, anything we can do to change the competitive, cynical culture of law enforcement to embrace the “truth-finding” function on all sides of the criminal justice system—including the post-conviction stage—is a good thing.  We need police and prosecutors to be willing to admit they could’ve been wrong.  In the alternative, we need systems in place where officials who weren’t involved in the investigation or prosecution of a case can review it from an outsider’s perspective, and determine whether there’s enough reasonable doubt to question the conviction.

By getting law enforcement to embrace the “innocence” side of criminal justice, we can get them to be a little less cynical towards the criminal defendants who they herd into jail cells on a regular basis.  There’s still plenty of other things wrong with the system, but it would at least be the first step in a good direction.  A wrongful conviction protects no one, and creates two victims instead of one.  The more we can do to impress that attitude into the culture of law enforcement institutions, the better of we’ll all be.

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