Police Accountability in Hemispheric Perspective

Police Accountability in Hemispheric Perspective

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[1] “In principle, internal processes are to be preferred, for at least three reasons. First, internal regulation can be better informed than external. A determined police can hide almost anything it wants from outside inspection, certainly sufficiently so as to make outside supervision haphazard Second, internal regulation can be more thorough and extensive. It can focus on the whole gamut of police activities, not simply on the more dramatic and visible aberrations. Third, internal regulation can be more varied, subtle and discriminating than external. It can use informal as well as formal mechanisms that are omnipresent in the professional lives of police personnel.” [2] “Civilian review deflects unfounded criticism, isolates the persistently erring officer, strengthens the hands of police middle-managers and attests to the good faith of the police. Civilian review is an important too/for managing the risks of dispersed police actions.” These two passages by [David Bayley,] a leading scholar of police, published six years apart, reflect a change in the acceptability of external review of police misconduct. Among police officials, as well as among scholars like David Bayley, there has been increasing disillusionment with discipline by internal management. Even more, there has begun a search for more legitimacy, for better relations and more credibility with the public. It is significant that the two passages, although they offer contrasting perspectives, are not in conflict; one could easily believe both at the same time. For me, they reflect a dilemma that has become more obvious as external review has been more widely accepted. If the monitoring influence comes from outside the police, it tends to rouse the opposition of managers as well as the rank and file. Without some cooperation from within, then, it is nearly impossible for the outsiders to investigate, and any policy recommendations they make are liable to be ignored. On the other hand, if the control is exclusively internal, it tends to become socialized to existing mores in the department and to be ineffective. This effect is especially strong in the United States, where officers have started at the bottom and there is very little lateral entry. Real accountability will have to combine internal and external controls. I am going to discuss the dilemma more thoroughly later on, when I talk specifically about accountability by discipline of police personnel. The important thing to focus on at this point is that no one system of accountability is a panacea for all the ills of police relations with the community. Moreover, the choices we make in Canada and the US as well as in other developed countries, for example between external and internal systems of administrative discipline, may not be politically feasible immediately in other countries in the Americas. To put it more simply, in places where there are widespread reports of torture and the abuse of deadly force and there is doubt that many police really accept standards of human rights or, for that matter, any standards set by political forces outside the police, discussions about the optimum system of administrative discipline for police may not be the best place to begin talking about accountability. We have to think about how to break down official impunity, and for that purpose we have to think about accountability in the broadest perspective. We have to think about accountability to the legislature and to the courts, as well as to the executive. We tend to think about ‘accountability’ on a case-by-case basis, on the model of a bureaucrat answering for breaches of law by himself or others. But systemic change can obviate the need for individual accountability in a range of cases by making it more unlikely that a violation of human rights will occur. Legislative changes in criminal procedure in Argentina and Mexico, making confessions given to the police alone inadmissible in the criminal trial have tended to reduce the incidence of torture in those countries. Similar results have come from the judiciary in places where the judiciary is strong enough to control the procedures. The Miranda rules established by the Supreme Court in the United States are a device to reduce the incidence of coerced confessions by warning suspects that they do not have to talk. In a similar development in Sao Paulo in the 1990s, administrative judges reduced the incidence of torture of suspects by requiring that police obtain orders to detain suspects, that suspects be examined for injuries, and that there be investigations in response to any complaints from suspects. Setting the standards of police conduct that are implied by these legislative and judicial changes tends to have the effect of making the underlying abuse—in this case, coercing information from witnesses - unacceptable to the public and ultimately to officials. The Miranda rules, for example, have served not only to warn suspects, but the police themselves, that involuntary interrogations are against the law and inadmissible. And I am told by lawyers in Sao Paulo that the use of torture has become less acceptable to the public as well as to officials. Similar changes can be made in the use of vehicle pursuits, house searches and the use of firearms. If the law restricts the occasions on which vehicle pursuits are permitted, then the likelihood of a violent confrontation between the police and the driver when he is finally apprehended is reduced. And we know from tradition in the English-speaking world that if a warrant is required for a search, then the chance of abusive searches is reduced. If there are stringent requirements for the use of firearms that are enforced by investigating and reporting on every shooting, together with discipline that is enforced, the number of shootings can be controlled. In the United States and Canada we would say that any of these systemic changes that reduce the opportunity for violations of human rights can be and often are introduced by changes in internal police regulations rather than by external legal change. The use of vehicle pursuits, for example, is usually limited by police regulation rather than by external legal rules. And when the US Supreme Court limited the use of deadly force in arrests to situations where the suspect presents a threat of violence to the police or the public, it was giving its approval to rules that were already accepted as the best police practice. But systemic change can be made by regulation, of course, only in police departments that accept the need to reduce the opportunity for abuses. When the organization resists systemic change, external legal reform is the only possibility. And when the organization accepts change on paper, but does not act in good faith, or when its members refuse to comply with regulations made either by their superiors or by external political forces, case-by-case accountability may be the only resort. The difficulties with such accountability, whether it be internal or external, are endemic. The success of the case depends on proof of the actor's liability, which depends in tum on happenstance such as the availability and reliability of witnesses and forensic evidence.

Source Publication

Democratic Policing and Accountability: Global Perspectives

Source Editors/Authors

Errol P. Mendes, Joaquin Zuckerberg, Susan Lecorre, Anne Gabriel, Jeffrey A. Clark

Publication Date

1999

Police Accountability in Hemispheric Perspective

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