New Evidence of Police False Statements

The New York Times has a story on the new CCRB report that includes data on the rise of proveable police deception:

In New York, the number of false statements noted by the agency, while small, has grown in an age of easy and widespread video and audio recording by civilians. In 2014, the agency found 26 instances where they believed an officer gave a false statement to investigators, a total equal to the previous four years combined.

As longtime readers know from my reflection on my work for the Civilian Complaint Review Board, both the standards of evidence and the standards of professional behavior are massively biased towards the police. We’d need to jump a very high bar of evidence to prove that something happened (ostensibly preponderance, but with police officers granted privileged credibility) and then pass a very stringent test to show that the force used was unnecessary.

Beyond the kind of deceptions mentioned here (which only new technologies can expose dependably) there was also pretty rampant “testilying” where officers used only cliches to make their case: “The suspect reached for his waste-band” or “I observed a hand to hand transaction” or “The defendant thrashed his arms and legs” were repeated over and over. It’s court tested language, so the testimony is culturally coached. Perhaps this was how it happened, but the same words came up time and time again to describe the actions of lots of different people in different situations, so you could never know if the officer was describing the fight in question or a different one.

In every discussion of the NYPD, I think it’s important to emphasize that in a department with about 40,000 working police officers, we only got about 4,000 complaints a year, and only substantiated about 400 of those. And there were repetitions, so that maybe 2/3 of those 4000 complaints were against the same 1000-1200 officers.

One way to think about this is that while we “substantiated” only about 10% of the cases we considered, we didn’t “exonerate” the other 90%. Most of the rest of the cases were “unsubstantiated” which meant that we just didn’t have enough evidence to proceed (roughly like deciding not to prosecute.) When combined with the overall testimonial privilege that officers receive, it’s almost certainly the case that a large number of those unsubstantiated cases were also true accusations. That suggests that in the NYPD, at least, the vast majority of officers are good people doing the job well enough to avoid complaints.

I think that’s a good sign: even if we know that there were also officers covering their badges and lying about their names, that’s marginal. The NYPD also spends a lot of money each year on settling lawsuits. So there is still plenty of misconduct to weed out.

Perhaps most importantly, there’s a level of legal, sanctioned violence that amounts to the domination and intimidation of whole communities of Black, brown, and poor people that goes unspoken and ignored.


Reflections on my Crime and Punishment Seminar


Old Ohio Penitentiary by J. Harris Day
Old Ohio Penitentiary by J. Harris Day

This semester I taught a course on crime and punishment, and in part out of competition with my colleague Seth Vannatta, I set out to give a final presentation on the dimensions of the course. This is the presentation I wrote.


Our task was to explore the role of ethics in the law, and we began our semester worrying about standard ethical questions of responsibility and who to blame when things go wrong. The standard theories of punishment all revolve around these questions: whether we are utilitarians or contractarians, we are implicitly depending upon an account of what we owe to the criminal and to society. What’s more, the same assumptions underwrite our theories of what it is to deserve a grade (an A, an F), to deserve the love of our partners, or to deserve a particular job or a raise. This question of where to locate merit in our account of responsibility is particularly troubling, however, when someone is harmed, when a law is broken, or a right is infringed.

Simple questions of positive and common law or negligence, willfulness, and standards of care quickly morphed into a thorny metaphysical question: how can we be responsible for our acts if we could not have done otherwise, that is, if the mechanistic picture of the universe and our genetics and our society and our brains is true, and what I ate for breakfast or the crimes I commit before dinner are all predetermined?

Reactive Attitudes

The courts want to avoid such questions, but throughout the semester my contention was that they end up smuggling metaphysical accounts of agency into their descriptions of the non-culpability of children for trespass. Yet what we saw in Peter Stawson’s account of the reactive attitudes was an attempt to save responsibility, praise, and blame while jettisoning the supposedly-unavoidable metaphysical underpinnings. By redescribing blame and responsibility in terms of their own possibly-deterministic framework, Strawson allows us to say something like the following: “Maybe you could not have done other than what you have done, maybe your virtues and your vices are both unavoidable, but my reactions are no more avoidable. If you cannot be expected to have prevented your crimes, then I cannot be expected to prevent your punishment.”

This certainly appears to be a satisfying solution to the problem, because the law cannot requires a victim or a judge to achieve an inhuman level of restraint in the face of a dazzling failure of restraint in the perpetrator. Strawson’s “reactive attitudes” account comforts us by communicating just how unfair this asymmetry actually is. And yet… in beginning to spell out conditions for the defeasibility for responsibility, Strawson reiterates that not all actions and reactions are symmetrical. Under many circumstances, a victim truly does have more restraint than a perpetrator, and ought to exercise  it, too. (Not just to prevent cycles of reprisal, although that certainly counts in its favor; to get beyond a mere modus vivendi to what we might mean by justice.) Even more: a judge’s capacity to see beyond the dyadic relationship of injury and blame means that she can ask questions about the overarching justice and efficacy of a punishment.

Grammatical Theories

Thus we entered what we called the “grammatical” theories of agency and responsibility. We experience our own lives through the first-person lens, as “I.” Meanwhile, we can talk about the other person in two different ways: as a second-person “you” or as a third-person “them.” And underwriting these lenses or grammatical conventions is the fact that we tend to see ourselves as agents and others as passive, to an extent that is so asymmetric and inconsistent that it is hard to believe it can be warranted. For instance, we are much more likely to explain our own failings in terms of circumstances, while we tend to describe the failings of others in terms of character, intention, or predilection. “I” fail because of events and impediments beyond my control, despite my best efforts. “You” fail because you didn’t try hard enough, you just weren’t willing to work at it; “they” fail because that’s just what they’re like, “they” are failures.

So what starts as an attempt to avoid the difficult metaphysical problems gets bogged down in our cognitive heuristics and biases. In gathering the texts we read together, I tried to duck this problem by adopting the third-person perspective, moving the course from the questions of just deserts to systematic accounts of the problem. Of course, all the intutions and issues of first-person and second-person agency and responsibility are still lurking there for you to pick up, if you like, but we’re all fascinated by the political theory and history, so I followed our collective inclinations. “Don’t blame me!” I guess I’m saying. “We are collectively responsible!”

The Republican Theory of Punishment

In order to ground our discussions of justice, we tried to transition from metaphysical and psychological accounts of freedom to the political and legal theory of liberty, that thing of which coercion and the threat of interference and violence deprives us. At about this point it began to be increasingly difficult to ignore issues of race, even in the sense of putting them off until we got to Michele Alexander’s book. So when John Braithwaite and Philip Pettit offered a theory of dominion as the equality of social status and defended it explicitly with reference to the differential “costs of victimization investigation” that African-Americans face, it became increasingly difficult to ignore the discriminatory intents and impacts of things like the death penalty.

Perhaps the most interesting insight that Braithwaite and Pettit offer is the conclusion that much punishment is simply an attempt to preserve hierarchy rather than to right an inequality. This is something we well-recognize in looking around at the race and class of those who get punished in the US, but philosophers too frequently ignore it. What’s more Braithwaite and Pettit offered us an explanation of what makes coercion and domination so difficult: not the harm or loss of utility, nor the shear loss of doing what you want to do, but the way that it harms our social standing, makes some “better than” and others “less than.” Many political philosophers have concluded that a democratic society cannot function if it is not populated by social equals. The only problem is that so many so-called democracies *do* seem to have serious social hierarchies, and as university students and faculty we inhabit an elitist institution that sets out to distinguish erudition from ignorance and good work from bad.

Costs and Benefits

One way to articulate the appeal of the theory of non-domination that Pettit offered is the way in which it gives us a tool to balance the costs of victimization against the costs of investigation and incarceration. But the balancing act favored just one variable, equality, and it seemed that this is not the only way to proceed. Sometimes, as in markets, equality should take a back-seat to other values, like efficiency and optimality.

In his book When Brute Force Fails, Mark Kleiman offered a different account. He suggested that given how much we spend on and lose to crime-avoidance, perhaps some large amount of criminality is simply inefficient, and we’d be better off spending even more of our scarce resources on eliminating it. What is more, he suggested, we not only need to spend more preventing crime, but we need to spend these greater resources more intelligently. (Work harder AND smarter.) Yet the real strength of his argument is not so much the cost-benefit analysis but his prescriptions: that infrequent, uncertain, and severe punishments are simply not much of a deterrent, while swift, certain, and light-but-escalating punishments could be much more effective, saving us costs to the criminal as well as the victim.

Given how much crime costs us as a society (and Kleiman includes the cost to the criminals!) there is much benefit to be had from preventing it. Yet so long as we organize our response to crime around the concept of punishment rather than prevention, we will tend to choose more severe and less effective regimes of investigation, correction, and incarceration.

Surveillance and Punishment

Despite its appeal, Kleiman’s prescriptions fall under the rubric of an increasingly surveyed disciplinary society, one that simply uses new technologies from psychology and economics to do a better job of controlling its citizenry. The justification for this increased control is that citizens desire safety and security more than they wish to be free from such disciplinary technologies, and Kleiman is undoubtedly right that that is our preference. However, we should worry.

The heart of the course was a close reading of Foucault’s book Discipline and Punish, and if his history taught us anything, it is that social knowledge always has two faces: the production of justificatory knowledge and “truths” by experts who stand to gain from their expertise, and the development of practices and techniques for the regulation and management of bodies.

Much of the first half of the semester was devoted to the production of knowledge and the progress we have made in discerning the true and the just ways of investigating and punishing. But what Foucault attempts to lay bare is the way in which our contemporary treatments of prisoners’ bodies are only intensifications of historical brutalities we think of as inhumane. The intensification follows an introverting path: we have certainly lost the stomach for the spectacle of the regicide being drawn and quartered or the criminal hung on the scaffold. But incarceration and rehabilitation, the watch-words of criminal science, take up a set of tasks related to the ordering of unruly and delinquent bodies that is much more effective but no less self-serving. We now have the tools for more power, and if Foucault is right then we will generally put these instruments to use in asserting our own advantage by dominating others.

Both the concerns about social hierarchies and the recognition of the radically racialized form that incarceration and punishment take in the US suggest that “our own advantage” may include my students and I, but it is unlikely to include the majority of black people and it is unlikely to include the majority of people without college degrees. Recognizing the power that our knowledge allows us does not mean that we can necessarily bend that power to our wills; it is much more likely that it will continue to accrue advantages for us even if we try to betray it, just a rich person’s Capital continues to make money even if they purport to be egalitarian communists.

Punitive Isolation and Bare Life

Deepening our understanding of the techniques of imprisonment, we read essays (including a great one by Lisa Guenther) on the horrors of solitary confinement and the sometimes bewildering Homo Sacre by Giorgio Agamben on the forms of exclusion that seem to have a permanent place in our prison system.

If Agamben is right, then these new forms are all a part of an overarching paradigm, that of the reduction of human beings to their mere physicality and biology. This political movement towards reduction transforms flourishing into survival, and it does it in a way that has been continuously experimented with since the first colonists started to round South African natives into “concentration camps” for ease of management. When those colonial overlords returned home to Europe, they brought their techniques of domination with them, and so in that sense the Holocaust was Europe’s chickens coming home to roost, a “boomerang effect” by which European Jews reap what European capitalists sow.

Biopolitics is a form of legal sovereignty in which “modern man” is a depicted as “an animal whose politics calls his existence as a living being into question” but it makes sense only as a development of the totalitarian interpenetration of politics and private life. The modern sovereign no longer decides between ‘letting his subjects live or making them die,’ rather he chooses to ‘make them live or let them die.’ Thus he distinguishes the form of a power that disciplines its subjects and channels their activity from one that simply responds to infractions with infrequent but grotesque punishments.

Trying to spell out exactly how these new techniques and knowledges serve the purpose of domination is something of a challenge precisely because they are still in the experimental stage, still being contested. In the absence of opposition, however, they have been allowed to remain in unquestioned use for far too long. The very nature of bare life and isolation means that the contestation that would normally be working through these techniques and forcing them to receive some form of justification has been slow to form even among those academics who are supposedly most opposed to domination and who purport to ally themselves always and everywhere with the downtrodden and silenced. Let me suggest one reason, at least, why you should think that there is still work to do.

Agamben suggests that we ought to see ourselves in solidarity with the least of us; the immigrants and refugees, those without rights. No doubt he is motivated by the idea that the rightless are marked by the fact that they rise in status when they have committed a crime, because only then are they granted procedural rights (like the right to a trial) and recognized within the legal framework. In practice, however, it may be more effective to view prisoners through the lens of the nomos of the camp.

The New Jim Crow

One concept we did not discuss in our class in much detail is race solidarity and race treason. But when we turned to Michelle Alexander’s book it became obvious just how difficult such a discussion might be. Having made a persuasive case for the differential intention and impact of the current system of mass incarceration, Alexander then asks her readers, who she assumes will be bourgeois African-Americans like my students, to engage in a radical act of political solidarity. Rather than putting our hope in a Black president, Alexander suggests that quietly celebrating civil rights victories from fifty years ago while enjoying the benefits of what she calls the “Racial Bribe” is a kind of racial treason: selling out the majority of African-Americans for the spoils of white supremacy by becoming complicit in it. In contrast, she suggests that true opposition to white supremacy will require a rejection of the racial bribe and a laser-focus on the policies currently at work in the domination of African-Americans.

We started this class asking what sort of punishment we owe to the criminal: at the conclusion, Alexander proposed that what we owe to the criminal is solidarity. I suspect that this is a difficult proposal to accept. I do not know how to make the case any stronger than she made it, so I will simply quote Baldwin, as she does:

these men are your brothers—your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off…. We cannot be free until they are free.

Yet as a white professor of African-American students, I cannot quite countenance her proposals, like when she took to the pages of the New York Times calling for a plea-bargain strike, suggesting that everyone accused of a crime act in solidarity to force the courts to a halt: “Go to Trial: Crash the Justice System.”

“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

I tend to think this kind of collective action is unworkable, in part because it puts the responsibility to act on people who are risking very serious jail time if they proceed.

However, the key focus of this proposal is not only to increase demand for lawyers and judges beyond the point the system can handle, but also to increase the demand for jurors so that we must actually face what we have collectively done. Right now almost no criminal can afford to take advantage of his supposed constitutional right to a jury trial. We do everything in our power to coerce them not to use that right, and the results are spectacularly unjust even if every one of them is guilty. As a result, most citizens don’t have to face up to the decision-making a jury trail entails. That’s part of why mass incarceration is of so little interest to most people: out of sight, out of mind. At least a plea-bargain strike would put citizens back in the drivers’ seat. When we get tired enough of jury duty, perhaps we will vote to decriminalize some of the things that are taking us away from our work and families. But so long as we can leave the job to prosecutors, we’ll likely continue to vote for tougher laws and more “tools in the arsenal of prosecutors,” which is an arms race prosecutors have long since won.

Throughout the course we saw a very diverse set of authors arguing that something akin to an abolution of incarceration was required. I didn’t always realize that a text could be read in that way, but it was a running theme. It’s almost impossible to imagine, now; yet I think that these unimaginable things are often what most needs philosophical work. Why not imagine a world where almost 2% of our fellow citizens are in some way dominated by the criminal justice system? Why not imagine a world where we regularly isolate  prisoners, depriving wrongdoers of the social bonds that would be required to reenter society?

Status Emotions and Punishment

I haven’t written much about status emotions, recently, but I came across one of my favorite Facebook memes and remembered again how central it seems. I don’t endorse the misogyny here, but it perfectly describes the way that fundamental attribution bias transforms resentment into contempt, and thus leads, in my view, to both epistemic and moral error:

Funny Confession Ecard: Once you hate someone, everything they do is offensive. 'Look at this bitch eating those crackers like she owns the place.'

I’ve also been thinking a bit about the role of status emotions in our treatment of criminals in the US. It’s important to recognize when your differing judgments are leading you away from the common sense moral community, and punishment is one place that this seems to be occurring for me. Put simply, I just don’t see any good reason to disdain or show contempt for convicted criminals. This follows quite self-evidently from my claim that status emotions are immoral and unreliable. But this puts me outside of the mainstream society’s judgments about criminals, and I wonder if I’ve missed something, am wired differently, or am simply altering my intuitions in order to bite the bullet on my idiosyncratic account of the moral emotions.

Recall that Michelle Mason just assumes that some people are better than others in her account of contempt as a reactive attitude. But the genius of Strawson’s account of the reactive attitudes was that it allowed us to sidestep tricky metaphysical questions about agency and determinism. Mason does the same thing, sidestepping tricky metaphysical questions about personal identity and the persistence of character traits over time and context. Yet she doesn’t thematize the question of persistence or identity in the same way that Strawson thematized determinism and blame.

Blame and punishing seem appropriate, but what I notice is that the prisoners I teach are thoughtful human beings who are interested in the texts we’re reading. They are polite, respectful, and in my judgment genuine. Almost every day that I come to class, someone thanks me for the lesson. At the same time, they have criminal histories. Some were simply caught up in the war on drugs, but some of them allude to having done truly bad things; this is not just a matter of a self-selected group of victim-less criminals. And yet, that doesn’t seem like it matters to me. It doesn’t seem like it should matter: to my mind, they are due the same esteem as anyone else.

Criminals could be the perfect test for status emotions, if you set aside all your concerns about the US’s problems with mass incarceration, innocence and plea bargaining, the racialization of justice, and the war on drugs. Of course, we shouldn’t set those things aside when we’re talking about policy, but at a certain point you have to admit that some people really are guilty. If the claim is simply that they wouldn’t be guilty in a radically different society, we’re back to begging the question in Strawson’s original use of the reactive attitudes: in that case, determinism actually does matter, and these crimes were [over]determined and thus deserving of neither blame nor contempt.

I think we can preserve blame while jettisoning contempt: we resent the criminal for the harm they do, and don’t worry about determinism. We can’t disdain the criminal without assuming something like: “You are the sort of person who would have done that in a different context. I am the sort of person who would not have done that in any of the proximate possible worlds.” I doubt such assumptions are warranted. Perhaps I am wrong. But the policy debate that takes all those political-economic-racial questions seriously would otherwise shift to seeking better means of distinguishing the truly innocent, those whose moral and social status has been wrongly undermined, from the truly guilt, those whose moral and social status is rightly low. My claim is that there is no fact of the matter about trans-modal character, and that this is morally relevant to status.

Contempt depends on the fiction of the doer behind the deed; it disdains the sinner in addition to hating the sin. If someone admits to having committed a bank robbery or a murder, they’re still: (a) human beings, (b) autonomous agents, (c) members of my moral community, (d) capable knowers, and (e) subject to the same moral luck as all contingent creatures. Thus, they are my moral equal and ought to be my social equal as well: an intuition that reports otherwise is simply in error, no matter how many people share the intuition.

Here’s where it’s helpful to be a contrite fallibilist, though: does anyone who has the status hierarchy intuition also have a reflective defense of it? Macalester Bell doesn’t. Mason doesn’t. But maybe somebody does.

Consider the Bathroom Break (Workplace Domination Part Three)

The virtue of the Crooked Timber bloggers’ objections to the Bleeding Heart Libertarians’ line is that it implicitly suggests the difference between liberal and republican conceptions of freedom. Libertarians have usually substituted theories of interference and coercion for a full-blown theory of domination. When Chris Bertram stopped by, he suggested that they wanted to avoid this theoretical debate, but I think it impoverishes the conversation a bit. I’ve written about this at length in the past, but for the purposes of navigating the Bleeding Hearts/Crooked Timber debates on workplace domination, here’s a quick primer on interference, coercion, and domination.

In the comments to my first post, Daniel Levine asked:

“Why, exactly, do you need the distinction between actual productivity-enhancing rules and dominating ones? If your target is domination, it doesn’t seem to matter if the domination enhances productivity, for two reasons.

1. Productivity is, at best, an indirect good for most workers (it may be more directly beneficial for academic workers, since we tend to be abnormally non-alienated from our work).

2. The fact that domination is “good for me” in terms of some of my interests does not generally make it any less domination or much less morally problematic. Part of the core insight, I think, of Pettit, is that domination is about whether my situation is responsive to my own agency and conception of my good, not just whether it maximizes my own interests.”

There’s a debate in the literature about this: one way of defining domination is as arbitrary interference. Arbitrariness generally means “choosing or not choosing at pleasure,” and this is the sense that I believe is correct. Philip Pettit has offered a defense of a stricter, more substantive sense of arbitrariness as “failure to track people’s interests according to their ideas,” but I think this is unworkable at the level of the firm. Certainly, in society as a whole we must avoid arbitrary interference with a person that is not in keeping with their conception of the good, but at the level of the firm it is appropriate to require that all workers set aside their conflicting conceptions of the good and join, for at least as long as they are on shift, with other workers whose efforts are bent toward a common good envisioned by the firm. I would argue that we should also set aside (or translate) our individualistic conceptions of the good when we enter the public sphere and act as citizens, but this is a long debate that is far afield.

Consider the bathroom break: on my view, an “arbitrary” interference would involve some non-principled way of awarding bathroom breaks, like the sweatshop practice of asking permission from pit bosses, who can play favorites or simply deny all requests. In such contexts, it is very demeaning to be denied the right to engage in basic bodily functions. You’ve got to pee when you’ve got to pee.

Yet things are a bit different on an assembly line, where if one person leaves the whole line has to stop. In general, the most non-arbitrary way to deal with this is to have a few extra relief workers available to swap places so that a worker with an urgent need can quickly head to the bathroom. A factory with such a system is simply more productive than one without it, but if everyone needs a break at once, someone may have to wait: this is not domination.

There are definitely domination violations in the sanitation arena, and these are policed by OSHA, which has pretty specific rules about bathrooms and sanitation. Yet they have never enforced a quantitative standard (i.e. four breaks per shift, at least one relief worker per twenty employees) because different industries and different people have different needs.

Instead, OSHA have chosen the famously legalistic “reasonableness” standard. And they actually cite and levy fines very infrequently, either because infractions are few and far between or because their enforcement is quite lax. Evidence suggests that former, but so does basic economics: this kind of domination is simply not productivity-enhancing.

Of course, even bathroom breaks are not always a matter of dignity: a traditional assembly line worker dealing with intestinal issues is going to seriously hamper the functioning of that assembly line, so it’s better for the company to let that worker call in sick (for pay, to avoid people showing up when they shouldn’t) and have replacements available. By way of analogy, consider that long haul buses don’t usually have bathrooms on them, so you have to wait until the next stop, which may be a few hours away. You’re not being “dominated” in that sense, it’s just that onboard bathrooms are too expensive. This may not correspond directly to a persons’ “interests according to their ideas.” Somebody with a chronic condition (IBS, say) might object that this prevents them from taking certain kinds of jobs. The ADA standard of “reasonable accommodation” seems pretty appropriate here: it’s a vague principle, but in practice and through judicial and agency interpretations it gets fleshed out in a pragmatic way that is aligned towards overall productivity.

Despite this slight departure, Pettit and I agree that “constitutional provision” is generally superior to “reciprocal power,” and indeed the Crooked Timber bloggers depend on this to be the case to defend voice over exit. The easiest way to enact “reciprocal power” is grant both worker and manager equal power to destroy the bond that joins them: managers command, but workers can quit. Thus, the manager can arbitrarily interfere with the worker, but the worker can do likewise by leaving, forcing the employer to search for new employees. No one enforces a “you can’t quit because your manager won’t sleep with you” rule, so (if the power is truly reciprocal) no one would need to enforce a “you can’t fire him because your worker won’t sleep with you” rule.

Of course, the power relations between workers and employers aren’t generally reciprocal! But this is not to say that they never are or cannot be: some high skill, high demand workers can negotiate these issues without help. It’s even possible to imagine some employees who have more power than their employers: consider doctors and lawyers, for instance, who we rarely speak of as “dominated” by their patients and clients.

What makes those professions powerful enough to escape arbitrary interference? One word: exit. Though the Crooked Timber bloggers contest this, I believe that generous unemployment benefits or a basic income guarantee are adequate to supply a kind of reciprocity. Part of this is tied to the “full employment” question: if there is a reserve army of unemployed than the protesting worker does not really have reciprocal power. BUT! The basic income guarantee militates in favor of full employment, which the CT bloggers gloss over in their analysis.

But that doesn’t mean that exit is sufficient. A firm made non-dominating merely by exit options and reciprocal power is one where only constant vigilance and threats deter resurgence of domination. In that sense, this would be a civil “war of all-against-all,” a Rawlsian modus vivendi. Both firms and employees should want more than that, and not just because of domination concerns.

The imposition of procedural rationality in the workplace limits both employer and employee arbitrariness in a way that benefits both. The principled restriction is that both are motivated by the same goal, of engaging in productive work. Most arbitrary interference is at odds with this goal. This is akin to “constitutional provision.”

What I mean by “constitutional provision” is a set of procedures for preventing arbitrary domination rather than for redressing it after the fact. (Rights not revenge.) In the political setting where a constitution limits the activities of the executive and legislative branches, we can say that the legislature is less free to make certain arbitrary interventions into the lives of its citizens. In the same way, constitutional provision in the workplace limits the range of restrictions that employers can place on employees.

Firms are an important part of the republic, and a republic that focuses on non-domination is going to want to prevent domination within the firm. One way to achieve this goal is to couple restrictions on the scope of arbitrary interference within the firm with adequate exit options. But none of this will grant “voice” alone. OSHA doesn’t give an employee “voice,” it gives employees recourse and an opportunity for reprisal after domination has taken place.

Let’s consider two paradigm cases of voice: an employee identifies favoritism, productivity-reducing arbitrary interference from a manager, and then brings attention to the manager’s superiors. This kind of voice benefits both the firm and the employee, but it requires that the employer create a protected channel of communication. If the only person the effected employees can complain to is the manager engaging in favoritism, the employees will be silenced by fear of reprisals. In this case, voice is aligned with the principle of productive collaboration rather than domination, and arbitrary interference results in lost productivity.

Now consider a productivity-reducing use of voice: employees protest automation because fewer workers will be needed to supply the same product. (I’ve recently been having this conversation with fellow academics about Coursera.) In aggregate, the world is better off if the same product (a car or an education) can be produced more cheaply. It doesn’t matter if the mission of a firm is to make widgets or mold young minds: ifa better technique comes along that uses fewer workers, than those workers can do something else. (Belief to the contrary is known as the “lump of labor” fallacy, but in any case these concerns are dispatched by the Basic Income Guarantee and full employment.) An effective exercise of employees’ voice in such a context would make the commonwealth poorer in order to serve the advantage of a few. Employees can certainly exercises voice in such circumstances, but the outcome of that exercise should be in favor of productivity gains. A firm that makes automation decisions does not dominate its employees, because the decision is guided by the principle of productivity, any more than an employee with a better job offer dominates his employer.

The CT bloggers argue that unions are a necessary component of such exercises of voice. Certainly one way to create a protected channel of communication is through a union representative or employee inclusion program. But this is not a necessary consequence of unions, and in fact union members are less likely to report that they have a meaningful role in decision-making than non-union members.

Of course, unions can enable voice: contract negotiations can become a space where labor and capital constructively engage with each other regarding all aspects of the firm. It’s just that they don’t tend to do that; large union bureaucracies don’t guarantee workplace democracy. They can supply other goods, like solidarity, opportunities for civic engagement, and protection from exploitation in our actually existing world of injustice. But in this sense they serve the “reciprocal power” goal by allowing periodic renegotiation and protection from reprisal. Yet a firm that is restricted by full employment considerations in the labor market and that enacts its own procedural approach to personnel matters will be able to prevent many forms of non-productive arbitrary interference with employees without a union.

Meanwhile, unions do enable one obvious form of interference: they enable the majority of workers in a shop to dictate working conditions and extract dues from the minority of workers. Even though closed shops are unconstitutional, agency shops that require non-union members to work under the collectively bargained contract and to pay dues for that privilege, which dues can then be spent on lobbying and advertising that does not conform to the some members of the minority’s “interests according to their own ideas.”

Is this domination? On my view, it is not, because it fails to be arbitrary: so long as the union does in fact work in a principled (non-arbitrary) way to advance the actual interests of the employee. But of course, there is no guarantee that this will take place. There is even risk of the arbitrary interference being reversed, and a particularly powerful union making unreasonable demands on a firm! Arguably, the public unions that have survived our long period of anti-union sentiment do just that, only the “firm” in this case is the republic itself: just remember that the only union that Scott Walker didn’t attack was the Wisconsin Professional Police Association, for whom citizens’ rights are simply “conditions of employment.”

“More Light!” Lying, Police Work, and the Exclusionary Rule

In the 1961 case Mapp v. Ohio, the Supreme Court declined to protect the the possession of pornographic material, but instead decided to exclude all evidence gained through unconstitutional searches. Last month, the Supreme Court revisited that decision in Herring v. United States, where they reconsidered the rule of evidence that excludes evidence gained unconstitutionally. Exclusion, Chief Justice Roberts wrote, “is not an individual right….” As a result, some have argued that the Court has  significantly weakened the exclusionary rule, and that exclusion will recede into the background, joining the plethora of institutions designed to prevent corruption rather than protect the accused. This is sure to deprive the writers of Law and Order of some legal intricacies to mis-explain, but as I shall argue, the Roberts court has not yet overturned Mapp. At worst, this decision is a mixed defeat: though a major legal protection has been weakened, it may not have been warranted to begin with.

Frankly, a lot of the hubbub is a bit premature. Herring dealt only with the admissability of evidence gained due to negligence of a third party, when a search relies upon a discharged warrant that was left outstanding in another county’s database. Chief Justice Roberts wrote:

“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

Though I don’t much like his style, Chief Justice Roberts is right in this, at least: exclusion is not a right, but rather a remedy for the violation of a right, and remedies must be equitable. When we speak in terms of rights, we can lose track of this. The privacy right partially contained in the 4th Amendment is not absolute, nor is it the sole dispository element in a case. At worst, this would allow evidence whose exclusion would be too ‘expensive’ to the justice system, though we are given no guidance on this kind of cost-benefit analysis.

The Wall Street Journal recently published an op-ed proclaiming that the exclusionary rule needs to be weakened. The WSJ charges the Warren Court that decided Mapp with suborning perjury, noting:

“Immediately after… Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. — most cases are prosecuted in state court — didn’t change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. ‘Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs,’ says John Kleinig, a professor at John Jay College of Criminal Justice.”

The Culture Exclusion Built

One thing you rarely hear about in all the police procedural dramas is that policing is a relatively new profession: the public employee who investigates crimes, captures law-breakers, and investigates disturbances is basically a French invention from the late 17th and early 18th centuries. As such, the profession’s development has coincided with the development of democratic governments and of state recognition of individual rights. As the state has become more and more interested in ruling its citizens lives rather than protecting and expanding its borders, police powers and responsibilities have increased, and liberal rights such as those spelled out in the 4th Amendment or derived from its explicit provisions have served to partially bolster individual freedoms from police interference.

In truth, the issue of police perjury isn’t directly relevant to the question the Wall Street Journal was really asking. The question isn’t: “should there be an exclusionary rule at all?” It’s: “Do the benefits of the exclusionary rule come at too high a cost?” Obviously, just because some police officers are tempted to lie to assure a conviction doesn’t mean we should make it easier for them to get a conviction without lying. However, the costs may be higher than a few tall tales of bungling crooks: it have made our police forces more corrupt.

In the early nineties, New York City took official notice of the tendency towards police deception in drug seizure cases, and of the close-lipped culture of corrution that it engendered. The Mollen Commission found that perjury was widespread on the NYPD, and that it was characterized by “brutality, theft, abuse of authority and active police criminality.” The report revealed that corruption and  brutality cases had been hidden from the public record by Internal Affairs officers acting under the pressure of this culture of permissiveness and self-protection.

New York City responded to the Mollen Report by forming a civilian agency to process complaints of the type the Mollen Report cited, one that would be independent of the police culture and able to act fairly and publically in these matters. Right after I graduated from college, I went to work for that agency, the Civilian Complaint Review Board. The job was fascinating for a recent graduate from a left-leaning liberal arts school: I interviewed police officers almost daily, dealt with the correctional system to find complainants and witnesses, and got to peak inside the casework of Giuliani’s NYPD, seeing the effects of the famous ‘broken windows’ theory in action. I met a lot of people whose lives were administered by city government, whether the city was their boss (cops) their landlord (public housing inhabitants, the homeless) or their jailor (convicts, immigrants).  My favorite bad agency name: the NYC Department of Health and Mental Hygiene.

Most of my work centered around allegations of police brutality and unlawful searches and arrests, so I spent a lot of time studying legitimate uses of force and New York State”s interpretation of the 4th Amendment protection from unreasonable searches and seizures. Though these are two areas in which modern American police forces tend to falter, the cases I reviewed were rarely substantiated. For the most part, this was because the officers acted, by all accounts, appropriately. Usually, the facts were not in dispute, and they indicated that the officers effected searches and arrests on the basis of probable cause and using the minimum necessary force. Complainants frequently stated that they resisted arrest, and that the officers struck or wrestled with them in order to gain control. So far, so good: honest officers acted honestly and within the bounds of law. (We can have a discussion about the legitimacy of the state’s monopoly on violence another time.)

The vast majority of the officers I dealt with were clearly blameless in the allegations I investigated, so I do not want to give the impression that my time with them prejudiced me against them. I did, however, notice some trends in these cases. Phrases were repeated: “he flailed his arms and legs,” “I observed a hand-to-hand transaction.” Sometimes, suspects even dropped their drugs and ran. Of course, I cannot say for sure whether these were lies, but I can say that many officers fit complicated events into a simple fact pattern that they had learned by heart. Asked for details, they would return to the general framework, or protest that they could not recall details. Police officers in New York carry memo books in which they store the quotidian details names, dates, weather, and time of day, sometimes even the details of radio calls or arrests. Generally they fill them in on breaks, however, so an action-packed situation that left an officer in the hospital might not necessarily be recorded in a timely manner or when the event was fresh. These officers had gaps in places we all might fail to recall: “Were you in front of him or behind him?” “Which hand?” “What did it look like?” “Where was he standing?” So they filled in those gaps with standard replies. A narcotics team that does a dozen arrests a day can’t be expected to remember the details of just one, right?

This form of ‘standardization’ is deceptive even if the intent to mislead is not always there: the officer knows his account does not correspond to the facts of the matter. The real problem is that the culture of standardized testimony serves to hide the real misconduct. Perhaps the officer’s story approximates the truth, perhaps the truth would cause trouble, or perhaps criminals are simply creatures of self-destructive habit. If every officer falls back on the standard testimonial forms in difficult situations, using fact patterns that have been tested in court rather than the weird and woolly reality, we can’t really tell the difference between forgetfulness and criminality. Compare the connotations of the ‘Thin Blue Line’ [of heroes] and the ‘Blue Wall of Silence’ and you see the problem:  the Blue Line stands between anarchy and civilisation, while the Blue Wall stands between officers and accountability. When you find yourself on the far side of that line, you’ve gone wrong.

Given my interaction with my superiors and colleagues, I believe some of these patterns were widespread. Yet in a few cases that I managed to prove that false statements were made,  I still could not prove intentional deception. Even when I found independent, well-educated witnesses (for education and a clean criminal background are important credibility boosters) to corroborate the complainant’s testimony, or when I caught the officers themselves in self-contradictions or identified inconsistencies between officers’ testimonies, there were still alternative explanations for self-contradiction and inconsistencies. Only rarely did we charge them with giving false official statements: the effective standard of proof for such a charge was unbelievably high. Most of my colleagues developed a twisted version of the Enlightenment’s epistemological skepticism: “I do not know what I cannot prove to the satisfaction of my superiors and an administrative law judge.” Yet though our findings rarely reflected it, there was a fact of the matter in each of the thousands of police-civilian contacts we dealt with each year. Somebody was lying, sometimes it was the police, but our evidence couldn’t bear the burden of proof.

The problem is built into the criminal justice system. Until or unless we develop holographic surveillance for every law enforcement officer in the country and replace testimony with cameras, we must assign privileged credibility to law enforcement officers if they are ever to achieve convictions. Beyond the monopoly of violence, a working police force requires the monopoly on credibility in order to function legitimately. This is an interesting case of potential epistemic injustice or testimonial privilege (as Miranda Fricker would put it.) It takes overwhelming counterevidence to outweigh a police officer’s testimonial privilege; I like to compare it to the procedural injustice under Islamic law, Shari’ah, in which two female witnesses are needed to convict one man. Our background institutions grant this double credibility to law enforcement officers because to do otherwise would be to undermine their investigative function. In order for us to trust the results of an investigation, we must first trust the investigator. In the absence of an external interest, a connection with the victim or the accused, we assume that officers will tell the truth, purposely ignoring the fact that they have an interest in getting the evidence they have gathered into the court’s record and under the consideration of prosecutor or jury, just as they have an interest in avoiding the the consequences of substantiated accusations of improper uses of force. By the same token, independent witnesses deserve no more credit than a law enforcement officer, especially since we rarely fully investigated their possible motives. Yet anyone who has been close to this process has to recognize the inadequacy of our presumptions in favor of police officers, which is why the perception of police lying is widespread even among those who work in or with law enforcement.

So if the WSJ is right, the 4th Amendment does little to protect the majority of citizens from unconstitutional police interference, for the simple reason that police officers lie or alter their narratives to render unreasonable searches reasonable. The absoluteness of the exclusionary rule propagates a culture of acceptable deception on police forces, who sometimes allow this habit of deception to slide into corruption. Herring thus helps to ease the major tension in a law enforcement officer’s professional life, between telling the truth and getting the bad guy. We ought thus to welcome it.

Systemic Remedies

The flashy and inefficient trial by rhetorical combat is dying anyway. We see it so occasionally that moments of full evaluations of law enforcement credibility, like the one we saw in F. Lee Bailey’s cross-examination of Mark Furhman in the OJ Simpson trial, come to stand in the public imagination for all trials. Real trials are usually quite boring: more trench warfare than duel, without much effective challenge to police testimony.

That’s why the true power in the criminal justice system lies in the hands of the prosecutor. In a recent discussion on Metafilter, I was reminded that most (90%) of all criminal cases aren’t settled in front of jury, but rather through plea bargaining with a prosecutor. Since most convictions result from plea bargaining, evidence exclusion or inclusion is just one of many factors that the parties consider as they try to come to a mutually satisfying deal, even when one of the parties is violent criminal and the other is a prosecutor representing the state: excluded evidence strengthens a defendent’s bargaining position, and a weakened exclusion rule weakens that bargaining position. Consider this description from the acting executive director of the CCRB during my time there, a woman named Florence Finkle. She had been an Assistant Distict Attorney in Manhattan, and made a name for herself prosecuting police corruption in the ‘Dirty Thirty,’ Harlem’s 30th Precinct:

…as a prosecutor you’re able to consider the rights of the defendant, the victim and the justice system as a whole. It might be trite, but it really feels like you have the power and authority to do justice.

The prosecutor sees herself acting as a magistrate, evaluating all the evidence and taking a holistic view. Unlike police officers, prosecutors have been around since the very first trials by jury in Athens. The professional ethos of prosecutors is clearer, and less caught up in the contingent developments of the modern nation-state. In many ways, it serves as surer footing for decisions about free and just institutional design than the plea bargain’s prisoner’s dilemma or the trial’s rhetorical combat. Of course, I’m prejudiced here. In addition to the young and honorable lawyers I knew at Vanderbilt who went on to become prosectuors, I will always remember Flo with awe, the way law students remember that one professor who used the Socratic method to shame them into learning. Flo was the most capable and scary person I have ever met. In my final interview for the job, her interrogation had me so confused I could barely remember my own resume. I am absolutely convinced that she used that power for good, that she had a carefully-tuned sense of justice and applied her tremendous talents to achieving it. I am untroubled by the idea that she or someone like her would be evaluating all the factors related to the disposition of a defendant’s case. I trust her to be fair, and as a nation we have increasingly placed our trust in prosecutors like her to make most of the decisions that determine the outcome of a case.

Unfortunately, not every prosecutor manages to live up to Flo Finkle’s justice-dispensing philosopher-king. No one knows this more than prosecutors how dishonest law enforcement officers can be. Yet they’ve done little to deal with the problem themselves. Amongst criminal lawyers, the perception of police perjury in drug seizure cases is quite high:

“According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.”

Consider this Alan Dershowitz article from 1994 which responds to the Mollen Report:

I have seen trial judges pretend to believe officers whose testimony is contradicted by common sense, documentary evidence and even unambiguous tape recordings. And I have seen appellate judges close their eyes to such patently false findings of fact. Judicial acceptance of obviously false testimony sends a subtle yet powerful message of approval, if not encouragement, to perjurers. […]

Many trial judges were prosecutors, and they know perjury when they hear it — and they hear it often enough to be able to do something about it. Yet many tolerate it because they think most victims of police perjury are guilty of the crimes for which they stand charged.

Dershowitz argues that prosecutors frequently encourage the kind of deception that drove us to reconsider Mapp in the first place, and that judges, who ought to know better, accept these lies without challenge. The standard testimonial forms come from prosecutorial coaching and willful judicial blindness. Ultimately, the culture of police perjury is attributable to that guidance and inattention. This is doubly troublesome, because while the police officer cannot control whether his actions are reviewed by a jury or even the Supreme Court, a prosecutor can manage things from behind the scenes through plea bargaining to avoid accountability. Without adequate remedy, what  is to prevent collusion between district attorneys and police? Political pressures on DAs who must stand for re-election are exactly the sort of majoritarian trumps to individual rights that drive the liberal/progressive impulse.

Of course, prosecutors don’t truly act as sovereign deciders: during each of those plea bargains, a defense attorney reviews the testimony and the evidence, and has an opportunity to protest that a particular piece of evidence would likely not be admitted, but the evidence excluded is likely to be immaterial to the case, especially when we factor in police dishonesty.  Yet public defenders are notoriously overworked and this kind of research is time consuming and slow. The difficulties of ferreting out the true details of a search mean that public defenders may miss many evidence exclusion opportunities that private defenders will discover. Exclusion thus serves to further privilege defendents who can afford private representation, perpetuating a two-track justice system.

A weakened or eliminated exclusion rule thus levels the playing field by simplifying the public defense attorney’s workload and potential complications, perhaps (PERHAPS!) allowing her to economize by paying greater attention to truly deserving cases where the prosecutor has made an error. Though this equality may come at too high a price, we are considering the background instituions of the nation here, where distributive justice (of public goods and of remedies for public bads) is trumped only by fundamental liberties. The kind of search you have to lie about, the kind that involves deliberately ignoring a person’s constitutional protections, would still be excluded on this view, since exclusion would deter that kind of behavior if it could be discovered.

This is a long way from the adversarial criminal justice system that we want, but perhaps it is the best possible approximation of the system of calm and patient attention to evidence and testimony that we deserve. Rather than pit a zealous and cunning defense against the state’s righteous might, judges and representatives of the interested parties could engage in collaborative fact-finding and remediation: rehabilitation or retribution.

The problem with procedural remedies in criminal justice is that they don’t go to the root of the problem: we want to punish criminals, and we want to protect civil rights, and those two goals are sometimes at odds. Though police usually stand between the strong and the weak and serve as the best possible antipower to domestic violence, corporate thuggery, and street crime, we are still offended by the blatant violations of privacy and dignity that arbitrary police searches entail.

As I have said, rights-regimes cannot be structured without consideration for the insitutional effects they will wield. The problem with the legal applications of the Kantian account of autonomous right-bearing subjects is that rights like privacy exist within a system that must trade them against other rights, like safety. We need some remedy that fits this violation of a civil rights and individual autonomy, but we will not countenance the loss of safety. The criminal justice system has to balance defendents’ rights against victims’ rights. Even police officers have relevant rights, here, since they ought not to be asked to sacrifice their right to self-defense as a condition of their employment.

Yet this is precisely why rights-talk gets us nowhere: alone, a right can be absolute, dispositive. When set in conflict with another right, both rights become simple values to be traded against each other. In the marketplace for rights, everybody loses. We win a right to a trial by jury, and the state simply raises the stakes of conviction, adding tools to the prosecutors arsenal until plea bargaining is preferable (in 90% of cases!) to placing the enhanced, unbargained charges in front of our peers. We spend so much energy and ingenuity struggling for the recognition and defense of a fundamental right to adequate counsel, and the state simply funds public defenders inadequately. Black Codes are eliminated and replaced with inequitably enforced drug laws. We are considering the background instituions of the nation here, and all we know for sure is that our present institutions are highly prejudicial, tremendously expensive, and considered unjust by many who spend their lives trying to work within them.

Many of our intuitions about exclusion are guided by the fact that the rule is caught up with ‘victimless’ crimes: drugs, pornography, prostitution. I’d like to conclude with another kind of evidentiary exclusion: the relationship between spousal privilege and domestic abuse. In the 19th Century, just as courts were repudiating the husband’s right to corporeal punishment, they began to innovate a number of evidentiary protections for husbands, including the oft-cited claim that spousal privilege inheres in the defendent rather than in the witness, allowing husbands to forbid their wives to testify against them, all in the name of protecting marital intimacy. This was clearly a violation of the principles underlying the rules of evidence, and we’ve long since closed those loopholes. However, we still see a similar issue in the state’s willingness to drop prosecutions when battered partners refuse to testify against their abusive spouse. Yet it does not foster marital intimacy to preserve the spousal privilege in the face of marital abuse.

In both lying and exclusion, we hamper the best epistemic system we’ve ever had, whose capacity to get it right is the foundation of our faith in democracy: the jury, the ultimate guarantor of criminal justice. Exclusion rules are a dangerous remedy for exactly the same reason that law enforcement dishonesty is dangerous: they both destroy the foundation of a jury’s deliberation.  Juries and citizens depend on two things for their determinations: adequate access to information and the inherent advantage of deliberation and group-decision making. We ought not to undermine that. “More Light!”