Police Reform and Social Responsibility Bill

Memorandum submitted by de Grazia Associates Ltd (PR 94)

The Threat to Operational Independence

1. Operational independence includes deciding the best tactics to deliver a strategy and making case decisions free from improper considerations. [1] The bill’s risk to the latter has not been sufficiently appreciated because the proposed system is entirely new; until you have touched the fire, you cannot judge its true heat. Also, over a decade has elapsed since the last major police corruption scandal, leading to a misplaced sense of confidence that ‘It can’t happen here’. In fact, corruption is never eliminated, reforms tend not to be durable, and political control of the police enhances the risk. [2]

Mistaken Assumptions Underlying the Bill

2. Arguments in favour of the bill boil down to a perception that British policing is not as effective [3] as it could be and would be improved were the NY system adopted. But this conclusion rests on two mistaken assumptions: first, NYC policing is better than UK policing; second, the huge declines in crime in NYC in the 1990’s resulted from mayoral control of the police.

3. NYC police measure themselves by the number of reported homicides because this statistic is hard to fiddle and the amount of minor and serious crime tends to trend murder. [4] Using this measure to compare London to NYC, the UK capital is indisputably more peaceable. [5] In 2010, NYC had 532 homicides; London had 124! [6]

4. If London is so much safer than NYC, why does the UK want to emulate NYC? Because policy-makers are impressed by the huge reductions in crime achieved in NYC and they attribute these to its accountability system. In fact, the policing revolution that brought down crime during Mayor Rudy Giuliani’s administration was no more attributable to the system of mayoral control than Newton’s discovery of the laws of motion was attributable to the system of government under James II.

Background to NYC’s Revolution in Policing

5. NYC has had its current system -- in which mayors select police chiefs who report to City Hall -- for a century, during which mayors have appointed good, bad and indifferent police chiefs and crime rates have see-sawed. For most of this period, the two constants have been antagonistic relations between the police and minority communities, and corruption.

6. NYC’s most recent crime epidemic, which began in 1963, [7] rattled through five Mayors and 10 police chiefs, reaching a crisis point under Mayor David Dinkins (1990 - 1994), the city’s first Black mayor. In the first six months of Dinkins’ term, a total of 40 children were killed by random gunfire as warring drug gangs ran wild in poor neighbourhoods. By the end of his first year in office, 2245 people had been murdered. [8] New Yorkers had elected Dinkins in the hope that he could calm race relations; instead, poor decisions by the Mayor and his police chief led to riots in which young Black men attacked Hassidic Jews. [9] To make matters worse, the NYPD was hit by yet another corruption scandal. In the early 1970’s, the Knapp Commission had uncovered systemic corruption involving organised crime paying off cops to ignore their rackets. [10] Twenty years later, rogue cops in high crime precincts were extorting money from drug dealers, stealing drugs, selling drugs, assaulting criminals, falsifying reports, and working for drug dealers. The commission appointed by Dinkins to investigate the new scandal concluded that the NYPD had ‘minimized, ignored and at times concealed corruption rather than rooting it out’. [11] Halfway through Mayor Dinkins’ term, only 37% of New York City’s residents expressed confidence in their police. [12]

7. These events set the context for NYC’s policing revolution. In 1993, a former prosecutor, Rudy Giuliani, was elected by a narrow margin after running on a single issue -- crime. With political ambitions beyond the office of Mayor, he knew he had to deliver on crime reduction, and, as a former prosecutor, he had a feel for the subject. Giuliani chose an outsider to run the NYPD, a Bostonian, Bill Bratton, known as an innovator, who had done a good job when he had previously headed the NYC Transit Police for two years. Initially, Giuliani gave Bratton a free hand.

8. Bratton turfed out the police department’s old guard and promoted good cops regardless of rank. He changed the NYPD’s system for managing performance and how it collected, analysed and used intelligence. For years, law enforcement progressives had advocated new tactics that the hide-bound NYPD was reluctant to take on board. Bratton embraced new ideas. He dropped the policy adopted in the 1970’s that had barred patrol officers from making drug arrests even if they saw crimes take placing in front of their noses. This policy had aggravated crime, demoralized patrol officers, and fueled minorities’ perceptions that the police only cared about White peoples’ security.

9. But after two years, Giuliani refused to renew Bratton’s contract despite dramatic crime reductions because Bratton’s courtship of the media threatened the Mayor and the two men clashed over City Hall interference in operational independence. [13]

10. Giuliani replaced Bratton with a loyalist, his Fire Department Commissioner, Howard Safir, [14] who continued Bratton’s crime reduction programme but demonstrated a deaf ear for community and media relations. Under Safir’s watch, there were four killings of unarmed men, including the death of a West African immigrant in a hail of police bullets and the precinct torture (sodomy with a broom handle) of another immigrant. Although crime had continued to drop, public confidence in the NYPD and its Commissioner plummeted. [15]

11. In 2000, Giuliani replaced Safir with Bernard Kerik, a former detective who had been the Mayor’s driver, whom the Mayor had promoted beyond his capabilities. Complaints about cronyism in the department were rife under Kerik, who was prosecuted for fraud, perjury and corruption and is now serving a federal prison term. [16]

12. Some British interpreters of NYC’s policing revolution assert that policing can be improved without additional resource. Yes and no. One reason for the NYPD’s success is that its numbers increased from 26,500 (1990) to 40,864 (2000). [17]

The Impact of Politics on Operational Independence in New York

13. Between the Civil War to the Great Depression, most mayors selected police chiefs who supported the system of bribery and kickbacks that greased all aspects of local government. A sea change occurred in the 1930’s when a reforming Mayor was elected and the Governor appointed a Special Prosecutor, Thomas E. Dewey, to clean up corruption. On the back of his anti-corruption campaign, Dewey was elected Manhattan District Attorney. The DA’s Office took over the direction and investigation of public corruption and organised crime cases. Dewey’s legacy was an enduring prosecution culture of proactivity and independence.

14. This sea change did not end political interference. Crime is an emotive subject, politicians need to win votes, they need help from other politicians, campaigns cost money, and they may be greedy. American politicians opine on the guilt of suspects, pressurise law enforcement to make arrests, to indict, to wiretap, to turn a blind eye to some offences, to go easy, to go slow, to keep crime down no matter how, etc. [18] The pressure can be blunt, subtle; it can be perceived. [19]

15. Arguably, the NYPD’s most recent scandal (revealed by a police whistle blower, Adrian Schoolcroft, who covertly taped hundreds of hours of conversations) results from political pressure to keep crime low. Following the usual pattern, the allegations surfaced several years ago but were dismissed by the department and City Hall. [20] Patrol Officer Schoolcroft went to the media after his attempts to address the problem internally fell on deaf ears. A local newspaper, The Village Voice, published a five part series based on Schoolcroft’s tapes. [21] Schoolcroft has filed a $50 million law suit against the City and the NYPD in federal courts for violating his civil rights by unlawfully committing him to a psychiatric hospital for seven days in order to discredit his revelations that the police commanders were falsifying records to make serious crime appear minor and forcing patrol officers to unlawfully arrest and stop and search citizens to make crime reduction quotas. [22]

Protecting Public Confidence in Policing

16. Like Mayors, PCC’s will be tempted to use their position to help out an influential person or entity -- a fund raiser, a media mogul, a major employer, etc -- or to prevent political embarrassment, score points, to line their own pockets, etc. [23] A Chief Constable’s career will depend on how he gets on with his PCC. Some will do the right thing no matter what; others will cave in to protect careers, pensions and honours.

17. Levels of confidence in the British police are quite high; their average score on the IPSOS Mori ‘veracity index’ (the percent of respondents who answer affirmatively the question ‘Do you generally trust them to tell the truth, or not?’) for a 12 year period ending in 2009 was 61% compared to only 18% for politicians. [24]

18. The public’s low esteem for politicians is partly due to the fact that people think politicians will say anything to get elected. The subtext is that politicians value power more than service. PCC’s are likely to campaign on operational issues rather than principles (fairness to all) or priorities (drug dealing in sink estates). The Conservative Chair of a Police Authority in a low crime Force Area was asked, ‘If you campaigned for PCC, what would be the main plank of your platform?’ He replied, ‘More cops on the beat -- that’s what the public always says that it wants.’ ‘And if you were running as a Labour Party candidate?’ ‘The same’. In fact, this is an operational issue and often not the right solution. A politician elected on this platform is bound to conflict with a conscientious chief constable and will not be able to deliver, leading to public cynicism.

Mitigating the Risks: Suggestions

19. Often over-looked in comparisons between the U.S. and the U.K. criminal justice system is the difference in the role of the prosecutor. The power of US prosecutors to initiate and conduct investigations, which creates de facto oversight of the police for indictable offences, is one of the most important checks and balances of the US system. In the UK, the power to initiate investigations rests exclusively with the police except in a handful of cases. Giving prosecutors greater control would help prevent PCCs subverting police independence. For example, there could be:

i. a requirement that the police notify prosecutors of allegations of official misconduct or complaints that involve influential targets;

ii. in these cases, prosecutors would have the right to direct the police and participate in the investigation. [25]

20. The bill allocates the role of investigating allegations of misconduct to the Independent Police Complaints Commission, but, in comparison to either the CPS specialist units or American prosecuting authorities, this is a weak agency. [26]

21. To maintain high leadership standards and reduce the risk of cronyism, PCC’s should be limited to selecting candidates who have fulfilled the current requirements.

23. While not an issue for the Scrutiny Panel, ACPO will want to focus on developing a strong culture of operational independence.

24. As is the case in DA elections, turn out will be low in PCC elections despite the government’s publicity efforts. Requiring candidates to be vetted by the Appointments Commission would improve the quality of PCCs. In NYC, the Mayor has the power to appoint most judges. To ensure their quality, Mayor Edward Koch (1978 - 1989) created an independent screening committee, which conducts public hearings at which anyone can testify, and established the precedent that Mayors would only appoint recommended candidates. [27]

25. The U.K. does not have as robust a ‘Big Society’ culture as the U.S. [28] In the DA race, numerous civic groups report on the candidates’ qualifications, and make recommendations. As part of building voter turnout for PCC elections, Parliament should consider how to promote similar engagement by UK civil society.

26. In the U.S., the conduct of candidates in DA campaigns can be unseemly. For example, in the last Manhattan DA race (2009), one of the candidates ran on gender: ‘It’s time for a woman DA’. She unearthed a thirty year old unsolved crime, the abduction of a child who was probably murdered. At a press conference with the victim’s father, she promised to represent the case to a Grand Jury despite the lack of new evidence. Following best U.S. practice in DA elections, Parliament could create a Code of Conduct for PCC election campaigns to promote full and open debate in a manner that enhances public confidence in policing.

27. PCC candidates should have full and equal access to information relating to policing; this will support the development of sound campaign promises, which will promote public confidence in policing.

28. Federal prosecutors (U.S. Attorneys) are appointed officials, nominated by the Senator of the state whose political party controls the Presidency. Often they have political connections. To protect their independence, the Justice Department requires that they report any request for information about a case by an elected official. Applying this to the UK, a Chief Constable could be required under similar circumstances to notify HMIC and the DPP.

29. Prior to the first election campaign for PCC’s, the government should strengthen the public interest defence in libel actions. The vigour of the American press is one of the most important checks and balances of the U.S. system. For example, a former police officer, Len Levitt, who has a column in the Daily News, was the first to report that the NYPD’s arrest of a Bronx chauffeur on a trumped up charge the day after he had embarrassed Rudy Giuliani by complaining about an illegal speed trap on the Mayor’s radio call-in show. [29]

30. In the U.S., judges may impose monitors to force reforms that City Hall is reluctant to undertake. (The Los Angeles Police Department had a monitor for 9 years.) The government should consider making the PCC liable for harm that results from improper conduct.

31. The same political party may well control the PCC and PCP. In any event, the PCP’s powers are too weak to check the PCC. In NYC, the City Council, which has its own legal staff, has compulsory powers to enquire into any aspect of policing. [30] Parliament should give PCPs similar remit and powers and ensure adequate funding. Public hearings to confirm the appointment of a police chief should include the right to take evidence widely.

32. Due to the size of force areas, PCCs cannot adequately represent the interests of the entire community. Parliament will want to make clear that the public can continue to report concerns about crime and policing to their other elected representatives, as happens in the U.S.

January 2011