TITLE: Policing in Emerging Democracies: Workshop Papers and Highlights. SUBJECT: International Statistics and Issues Series: NIJ Research Report Published: October 1995 213 pages 394,567 bytes U.S. Department of Justice Office of Justice Programs National Institute of Justice Policing in Emerging Democracies: Workshop Papers and Highlights National Institute of Justice U.S. Department of Justice Bureau of International Narcotics and Law Enforcement Affairs U.S. Department of State Washington, D.C., December 14-15, 1995 U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531 Janet Reno Attorney General U.S. Department of Justice John C. Dwyer Acting Associate Attorney General Laurie Robinson Assistant Attorney General Jeremy Travis Director, National Institute of Justice Justice Information Center World Wide Web Site http://www.ncjrs.org Opinions or points of view expressed in this document are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. NCJ 167024 Policing in Emerging Democracies: Workshop Papers and Highlights National Institute of Justice, U.S. Department of Justice Bureau of International Narcotics and Law Enforcement Affairs, U.S. Department of State Washington, D.C., December 14-15, 1995 October 1997 ------------------------------ CONTENTS Workshop Overview and Highlights Opening Remarks --Jeremy Travis --Robert Gelbard Paper --Principles of Democratic Policing --Philip B. Heymann Keynote Address --American Law Enforcement Perspectives on Policing in Emerging Democracies --Raymond W. Kelly Paper --Toward Democratic Policing: Rethinking Strategies of Transformation --Clifford Shearing Reflections on Day One --Strategic Implications --Michael Smith Paper --Reflections on the Transfer of Knowledge to Support Democratic Policing in Hungary and Romania --Deborah G. Wilson and William F. Walsh Paper --Who Are We Kidding? or Developing Democracy Through Public Reform --David H. Bayley Workshop Wrap-Up --Where Do We Go From Here? --Mark H. Moore Appendixes ----------------------------------- PREFACE For some time, the United States has offered training and technical assistance to police organizations in other countries. Over the past several years, there has been an unprecedented opportunity to do so within the context of state reform in countries making the transition to democracy. As a result, the agencies of the U.S. Government that administer this assistance have expanded their training activities and changed the focus of the assistance provided. The Department of State and the Department of Justice have built a strong and evolving partnership in this arena. These two U.S. Government Departments seek to promote the development of effective and accountable police services in countries where the difficult transition to democratic forms of government is taking place. Both agencies also recognize that fundamental questions remain about the most effective strategies for fostering such reform. To pose these questions and to challenge traditional assumptions, we hosted a workshop on policing in emerging democracies and commissioned papers from leading academics who have reflected on these issues. The workshop was cosponsored by the State Department's Bureau of International Narcotics and Law Enforcement Affairs and the National Institute of Justice, the research arm of the Department of Justice. Attending the workshop was an impressive group of scholars and practitioners, representing the experiences of more than 20 nations in developing democratic police functions. Also participating were representatives of each of the Federal agencies now engaged in providing training and technical assistance abroad. The keynote speaker was Raymond W. Kelly, former Police Commissioner of New York City, who had recently returned from overseeing the international policing operation in Haiti. The exchange of ideas that took place at the workshop, and the papers reproduced here, will serve as a rich resource to be tapped in shaping policy in the future. We wish to express our thanks to the participants, particularly those who wrote the foundation papers and who provided the synthesis of the proceedings. It is our hope that the discussions inspired by the workshop will continue and expand in the years to come. Timothy E. Wirth Under Secretary for Global Affairs U.S. Department of State Jeremy Travis Director National Institute of Justice U.S. Department of Justice --------------------------------------------- WORKSHOP OVERVIEW AND HIGHLIGHTS Haiti, South Africa, and numerous countries in Eastern Europe and Central America have been working in the past several years to build democratic institutions of government to take the place of authoritarian forms. A major government institution in any country, the police in these emerging democracies are a current focus of attention. In emerging democracies as elsewhere, the police are the government's face--the institution citizens come into contact with on a daily basis more often than others. In countries where the police have been an instrument of repression rather than democracy, building citizen confidence in this institution is a particular challenge. The United States currently offers technical assistance to the police in emerging democracies and other countries. The two agencies most active in providing this assistance, the U.S. Department of State and the U.S. Department of Justice, are collaborating on ways to expand and disseminate information that can promote modern, democratic policing practices based on the rule of law, support international justice assistance, and help shape future policy. One outcome of that collaboration has been an exchange of ideas and experiences among professionals in criminal justice research and law from the United States and abroad, police officials, and Federal policymakers. That exchange took place at a workshop on policing in emerging democracies sponsored by the Bureau of International Narcotics and Law Enforcement Affairs, Department of State, and the National Institute of Justice, Department of Justice. A key component of the workshop was a series of papers presented by experts in law and criminology. These papers form the basis of this report. U.S. Justice Assistance for Policing in Other Countries Several agencies of the U.S. Government offer justice assistance to the police in other countries. It takes the form of training and technical assistance to help combat such crimes as firearms and drug trafficking, money laundering, and currency counterfeiting; and programs aimed at improving law enforcement techniques (by building forensics capabilities and providing firearms training, for example). These efforts to aid criminal justice agencies abroad have increased dramatically in recent years. One reason is the growth of transnational crime, which affects domestic law enforcement because it victimizes U.S. citizens, and the other is the transition to democracy occurring in the newly independent states of the former Soviet Union and elsewhere, a process the United States supports as a foreign policy objective. That involves support for the police as an institution affected by the reform process. The expansion of U.S. assistance for policing and the need for information that can shape public policy related to this assistance provided the impetus for the workshop on policing in emerging democracies. (A detailed discussion of current U.S. justice assistance for policing is in appendix A.) The Workshop and Its Goals The 2-day workshop on policing in emerging democracies, held in Washington, D.C., in December 1995, brought together 64 participants to exchange information and ideas as a means of contributing to the body of knowledge on the topic. (A list of attendees is in appendix B.) Complementing that exchange were presentations of experiences in the field and suggestions that could be incorporated into the development of policy on assisting police in emerging democracies. Future steps were also contemplated, as both sponsoring agencies wish to continue these exchanges, whether through research, document exchange, or the creation of a "virtual" organization. They are particularly interested in dissemination of information across national boundaries. Ideas presented by several experts in criminology and law and case studies related by professionals experienced in assisting in police reform abroad were a central component of the workshop. These experts had been commissioned to prepare papers on the principles of democratic policing and on issues critical to the successful transfer of knowledge to support democratic policing in emerging democracies. A Framework for Analyzing the Issues The notion of promoting police reform has an almost intuitive appeal, but the discussions and papers made evident the complexity of that notion as it applies to emerging democracies. Even the definition of "democracy" was debated. The workshop was a forum for identifying this and other issues related to policing in emerging democracies, exploring them, and bringing to light and comparing varied and sometimes opposing perspectives. At the workshop conclusion, Mark Moore articulated an overall framework for analyzing the issues explored.[1] A key component of the framework is a series of "tests" or standards for measuring the viability and utility of a government strategy for assisting the police in emerging democracies. These are the same tests or standards that must be met by any other strategy adopted for use in the public sector: o The strategy must have some important public value. o The strategy must have legitimacy and attract support from those who are in a position to provide resources and lend their authority to it. o Operational capacities must be sufficient to achieve the goal of the strategy. It is assumed that democratic values should be reflected in policing and overall governance (the first test). However, the notion of the form of policing as itself a shaper of democratic culture should also be considered. In other words, a distinction can be made between a style of policing that pursues particular values and legitimates itself in a particular way and, on the other hand, a style of policing that reflects or is the product of a local democratic culture. Stepping outside the local environment and viewing the strategy from the perspective of the U.S. Government, assistance for policing could meet the third test by contributing to operational capacity (for example, through technical assistance, funding, and equipment) and it could meet the second test by contributing to the legitimacy of policing, when such assistance supports--or does not support--local authorizing processes. The basic question and its variants. The basic question--how can we reform the police in ways that promote the development of democracy--has several variants. One variant proposes a more modest objective than promoting democracy: How do we reform the police in ways that are not destructive of the development of democracy? Alternatively, a middle ground is to phrase the question as, "How do we reform the police in ways that make them reflective of democratic society?" The first form of the question is the "strongest," proposing to strengthen democracy beyond just the boundaries of police operations. Implied in the basic question are several others. One is how to define the terms "we," "police," and "democracy," for their definitions are not necessarily self-evident. "We" is assumed to mean the citizens or representatives of the U.S. Government who are considering the use of public resources. The term "police," however, can mean either police institutions only, criminal justice institutions, or the general security function of society. "Democracy" too can be defined in several ways--more traditionally, as a set of institutions; in terms of culture as citizens' aspirations and expectations; or as the rule of law. Quite different from the rule-of-law definition is that of democracy as an articulation of citizens' collective aspirations or as a system providing equal delivery of services (not just equal delivery of political rights) or creating just conditions in society. Depending on the definition, the course of reform might vary. Thus, the way democracy is defined would determine the perception of the role of the police. For example, if democracy is viewed as providing equal services, then all citizens have equal claims on public security. The foreign policy context and objectives. There are several situations in which promoting police reform in support of democracy becomes especially relevant to U.S. policy. The three most common are where a state has collapsed, where civil war has broken out, or where an invasion has occurred. U.S. support for police operations is no longer tied to Cold War objectives. Rather, our own domestic law enforcement objectives are gaining in importance and, where states have collapsed, opportunities may arise to provide humanitarian aid and support democracy. In all these situations there is a related question, "Whose purposes are we trying to accomplish?" The answer, "Not ours," presupposes that the United States should act only in response to the wishes of the recipient country. The alternative answer, "It is U.S. objectives that matter," derives from the notion that the resources expended are ours, although the institutions and culture of the recipient country must be understood and its needs accommodated. The end or goal of U.S. assistance to policing may be to advance U.S. law enforcement objectives or to advance democracy. If it is the former, several types of intervention are possible, among them improving operational capacity--through training and technical assistance--and there are means to affect more than just operations. If the goal is to advance democracy--assuming there are forces within a country working toward that end--support for the police becomes only one small part of what can be done. It should be kept in mind that the goal of advancing U.S. law enforcement objectives and the goal of advancing democracy are sometimes incompatible. An example would be situations in which our country supports authoritarian regimes to achieve our own internal law enforcement objectives such as suppression of drug trafficking. What kind of policing will be "exported"? If the foreign policy context and the goals of U.S. assistance vary, so will the form of policing being exported. If the goal is to advance democracy, protection of individual rights may be a consideration, and if so, other components of the criminal justice system might be the objects of reform in addition to policing. In fact, reform might extend to the entire criminal justice system and even beyond--to institutions in civil society that have a security function. These are particularly important to consider if the form of democracy pursued calls for construction of a political culture within the civil society. The functions for which the police are to be responsible also need to be identified. They might extend not just to street crime but also to antiterrorism, antisubversion, and police handling of civil unrest. Antisubversion and antiterrorism might be best left outside the purview of the local police, as these functions may be closely linked to politics. Should community policing be the form adopted? It may be necessary to first pass through a stage of more traditional "professional" law enforcement. To be sure, focusing on community policing and the security function of civil society would be valuable, as it would encourage the development of support for a local capacity for action that would in turn support responsive democracy. Can police reform affect democracy? There are several mechanisms through which reform of policing, the criminal justice system, or society's security function can affect the quality of democracy: o By bringing to the table the question of what form of policing is to be adopted, it may be possible to create a dialogue about democratic principles. In other words, simply making policing an issue for discussion might favorably affect the quality of democracy. o Assuming that the policing profession is a means of upward mobility for people who join the force, training could be a way to prepare recruits for leadership in civil society as well as policing. o Having police focus on effectively controlling street crime and disorder might diminish any tendency for them to support authoritarian regimes. o By supporting the government, policing could enhance government's credibility as effective, powerful, fair, and equitable. o The way policing is conducted might engage citizens in experiences that teach democratic values. Citizens' experiences as victims, witnesses, offenders, or in oversight of the police could help construct a political culture supporting democracy. The value of documentation. In providing assistance to policing, the United States might have to move quickly when the situation demanded it but would also need to stay long enough in a particular place to produce the desired effect. Whether the United States is prepared to act quickly, provide sufficient resources, stay long enough, and be flexible are questions that need to be addressed. In addressing them, it should be kept in mind that in any situation, the U.S. will not have the luxury of first being able to learn, and then acting on the basis of what is learned. Rather, we will be learning while doing. For this reason, it may be useful to take such preparatory steps as documenting what is being done in a specific situation and with what effect. That would include examining case studies of interventions in partnership between academics and practitioners. These case studies would form the basis of understanding what seems to have worked and what has not. Highlights of the Workshop The workshop on policing in emerging democracies opened with remarks by the directors of the two sponsoring Federal agencies. Jeremy Travis, Director of the National Institute of Justice (U.S. Department of Justice), noted that the intent of the exchange of ideas and information was to contribute to the further development of policy in support of policing in emerging democracies. He expressed his interest in continuing this type of dialogue in partnership with the State Department. Ambassador Robert Gelbard, then-Director of the Bureau of International Narcotics and Law Enforcement (U.S. Department of State), noted that there is a lack of empirical knowledge related to policing in emerging democracies and that his department's recent experiences could help provide the means to build that knowledge base. The four commissioned papers and other addresses explored a range of issues related to policing in emerging democracies, including the relationship of policing to democracy and of democracy to policing, how the United States defines its interests in offering assistance, and the shifts in the role of government in democratic societies that is in turn shaping policing and other institutions. Some of the addresses drew from the presenters' own recent experiences in assisting police in Eastern Europe and Latin America. First Paper: "Principles of Democratic Policing," by Philip B. Heymann It is difficult to develop a truly competent criminal justice system by beginning with a focus on common crimes and then slowly building competent institutions, especially if the system disregards the crimes of the powerful. The United States should invest in strong systems that can and will press for equal application of the law to the powerful as well as the weak and small. That means taking a forceful stand on corruption, bias, political violence, and intimidation. Keynote Address: "American Law Enforcement Perspectives on Policing in Emerging Democracies," by Raymond W. Kelly Raymond Kelly presented as a case study the U.S. role in setting up a new police force in Haiti following the intervention led by the United States. Because Haiti under the old regime represented an almost textbook case of the police as an unchecked instrument of state oppression, indistinguishable from the military, and with no tradition of public service, the intervention included a police monitoring force. The work of the monitors revealed that corrections and the judiciary in Haiti shared the problems of the Haitian police and suggested that where policing reform is called for, reform may need to be extended to other components of the criminal justice system. Second Paper: "Toward Democratic Policing: Rethinking Strategies of Transformation," by Clifford Shearing with the assistance of Jennifer Wood Established democracies are no longer viable models to be emulated because in them the assumption of governance as a state monopoly is now being questioned. This rethinking (or reinvention) of government has several expressions, among them the call for more direct citizen involvement. Within law enforcement it is most evident in community policing, while the growth of private policing also expresses this devolution of responsibility--to "corporate governments." In South Africa, Professor Shearing has been working to promote a vision of police reform that recognizes this devolution, with programs seeking to empower communities with the autonomy of corporate governments. Reflections on the First Day, by Michael E. Smith Professor Michael Smith drew on his own experience in assisting criminal justice officials in England, France, and the former Federal Republic of Germany in transferring techniques and lessons from the United States. On the basis of this experience, he concluded that direct exposure, which permits individuals to judge the value of what they observe, is the best practice. His comments on the papers and discussions included the following: o The discussion about the conflict between short- term domestic law enforcement needs and a long-term interest in stable democracies could have been more frank. o The United States needs to understand enough about what policing does in this country if it is to be able to transfer that understanding to other countries. o Even relatively simple interventions in another jurisdiction's law enforcement take considerable time. Third Paper: "Reflections on the Transfer of Knowledge to Support Democratic Policing in Hungary and Romania," by Deborah G. Wilson and William F. Walsh Professors Wilson and Walsh assessed their experience in providing training to the national police of Hungary and Romania. The factors promoting entry and acceptance are recognition of the need for outside assistance (which may be precipitated by a crisis), recognition by the United States of professionalism in a country's police force, evidence of a commitment for the long term, and the perception of education and training as a dialogue resulting in reciprocal development. For the two recipient nations, three major needs became evident: (1) to increase public confidence and create a more favorable public perception of law enforcement; (2) to recruit and retain qualified personnel in the face of growing market forces that devalue the attractiveness of the policing profession; and (3) to adopt modern management techniques, which have been limited partly by the highly centralized nature of the policing organization and partly through lack of exposure. Fourth Paper: "Who Are We Kidding? or Developing Democracy Through Police Reform," by David H. Bayley The police cannot be an instrument of reform because unless a government is committed to democracy, reform of the police can do little to bring it about. Approaches generally assumed to be associated with democracy, such as community policing, in fact have been adopted in nondemocratic regimes, while a centralized police, often associated with repressive government, is the organizational form the police have taken in many democracies. Certain reforms are more likely to be exported than others, and those that are least exportable (those affecting police purpose, functions, control, and accountability) are also those that have the least effect on democratic development. Workshop Wrap-Up: Where Do We Go From Here? by Mark H. Moore Professor Moore drew on the ideas of the participants to construct a framework for understanding and analyzing strategies to promote policing reform in emerging democracies. The basic policy objective of reforming the police in ways that promote democracy may have to be modified to less ambitious variants, among them reforming the police in ways that are not inimical to democratic development. Although reform of the police is a foreign policy issue, one that raises the question of whether the United States wishes to advance its own domestic law enforcement ends or to enhance democracy, those ends are not always incompatible. The mechanisms by which policing affects democracy include sustaining a dialogue about democratic principles by raising the question of the form policing should take, providing training for future leaders, focusing on street crime as a way to deter the police from supporting an authoritarian regime, enhancing the credibility of government as fair and equitable, and creating experiences in which citizens who come into contact with the police are exposed to democratic values. Note [1] The full text of Mark Moore's presentation is in this report. ------------------------------------ OPENING REMARKS Honorable Jeremy Travis Director, National Institute of Justice, U.S. Department of Justice All of you are here for a 2-day workshop on policing in emerging democracies. We have much to discuss over a relatively short period. The purpose of our introductory remarks this morning is to open the discussions and to get things going. I would like to take just a moment to share with you some of the thoughts that we have in the National Institute of Justice about the next 2 days and then ask Ambassador Robert Gelbard to do the same for the Department of State. The National Institute of Justice, as most of you know, is the research and development arm of the Department of Justice. Since our creation by Congress in 1968, we have had an international dissemination mandate, and we are now working with a number of our colleagues in the Federal Government to try to develop new capabilities, capacities, and dimensions to our congressional mission. This, I must say, is the most exciting of our new undertakings: to bring together practitioners, researchers, and policymakers from around the world to talk about the issue of policing in emerging democracies. A number of objectives have been established in our discussions with our colleagues in the Department of State for the next 2 days, and they are quite straightforward. However, we should all have them clear in mind as we begin. One is to engage in an exchange of information, ideas, and experiences. In furtherance of that objective, we asked for four papers by five people who are here with us today. We asked them to share their experiences, reflect on those experiences, and assist us in finding common elements that are worthy of our further consideration. The second part of that first objective is to ask each of you to help us think about how to continue this exchange of information, whether it is in a research capacity, an exchange of documents, or as Clifford Shearing used the phrase once, in the creation of a "virtual institute." Think about ways to share knowledge across international boundaries. Our second objective is to ask you to provide policy ideas and advice to our international community gathered here today and, in particular, to the representatives of the Federal Government agencies who are gathered either around the table or elsewhere in the room. We are all open to your suggestions; your ideas are welcome. The third specific objective is to think about the future. When Ambassador Gelbard and I first discussed this idea, we were very clear with each other that we wanted more than a 1- or 2-day gathering of people to talk about an important topic. We are both interested in asking ourselves and asking you how to continue these sorts of exchanges in the future. We are enthusiastic about today and tomorrow. The timing of this workshop could not be more appropriate considering many people in this room are thinking about a very specific application of the issue of policing in emerging democracies. We hope, on behalf of the National Institute of Justice, that we can make a contribution to the development of an effective policy in this regard in any of the emerging democracies, and I include our own as an emerging democracy. I will turn now to Ambassador Gelbard. Ambassador Robert Gelbard Director, Bureau of International Narcotics and Law Enforcement, U.S. Department of State As NIJ Director Jeremy Travis just noted, the genesis of this workshop was the discussions that he and I had about the increasing importance of policing in emerging democracies. As we have continued to look at the issue of building democracies, it has become clearer and clearer from the point of view of foreign policy, particularly over the past decade and a half, that the previous thinking--that of relying on the first presidential election in a country as the goal to achieve democracy--was extraordinarily shortsighted. But, of course, we had very little experience in actually trying to do this. In fact, the first presidential election is a necessary but insufficient condition. The longer I have been involved with these kinds of issues, the more I am convinced that it is the second presidential election that becomes much more interesting. The more we have tried to look at the kinds of issues involved in consolidating democracy, not with creating democracy, it has become more clear how important the justice sector's role is in trying to build democratic police, as well as judicial, prosecutorial, and penal institutions and the kinds of legal frameworks that are necessary for the public to be able to have confidence in their systems. Reading through the papers that have been provided for this workshop, I found subjects and issues raised that were of great interest to me. I was reading them on the airplane as I returned from Bosnia yesterday, where we have been asked to begin to establish a program of police monitors both there and in eastern Slovenia, as well as to try to create other kinds of democratic law enforcement and judicial institutions. We certainly hope that we can call on some of you to help us and give us advice as we try to take on this extraordinary task. But as we begin to grope our way with our friends and allies toward better understanding of the type of role required in order to build these kinds of core institutions, it is very clear that the amount of knowledge that exists based on empirical evidence is somewhat lacking and that we will be building a further knowledge base over time using the experiences we are having, whether in Cambodia, Haiti, Central America, South Africa, or Namibia. We certainly see this workshop as a very important start to try to reinforce our efforts to create a greater interchange of views with theoreticians, practitioners, and others. We look forward, together, to working further with you as we try to move along this path. ------------------------------------ PRINCIPLES OF DEMOCRATIC POLICING by Philip B. Heymann I have been asked to draw on my experience working in Guatemala, South Africa, Colombia, and Russia and visiting criminal justice institutions in many other countries to comment on the principles of democratic policing. I am happy to do so but should admit at once to an unqualified commitment to one particular concept of the U.S. interest in this area. I think our national stakes rather plainly lie in encouraging very strong democracies and very strong criminal justice systems--ones that are unbiased as well as effective--even when compromising on these ends might offer us more immediate advantages. But let me begin. I worry that you may expect me to talk about the comparative merits in policing of professionalism, problem-solving attitudes, and close relations to local communities at early stages of democratic development in nations of Eastern Europe, Latin America, Africa, or Asia. These are important questions. But other questions about the relationship between democracy and policing or, more broadly, law enforcement, are even more fundamental. They are the relationships I shall discuss. I shall describe two types of democracy--"weak" and "strong" in the strength of support for popular rule--and two types of criminal justice systems--"weak" and "strong" in their ability to handle crimes by the powerful. Then, I shall describe how the type of democracy you get is influenced by the type of criminal justice system you pursue. Finally, I shall describe what outsiders like us can do to help develop an effective and "strong" criminal justice system and thus a strong democracy. Weak Democracies and Strong Democracies GUATEMALA CITY--The United Nations issued a damning review of Guatemalan human rights yesterday, painting a grim panorama of state killings, death squads and abuses by leftist rebels . . . The report accused police and army forces of cold- blooded murder, running "social cleansing" death squads to kill common thieves, drug trafficking, car thefts, and illegal logging . . . It said Guatemala's legal system was "virtually paralyzed," and incapable of investigating crimes, even threats and attacks against its own judges and prosecutors. The main victims of abuse continue to be human rights activists, politicians, and public prosecutors. - Reuters, October 31, 1995 Democracy in the contemporary world is sustained by two primary forces. It can be the result of the rather powerful demand of the population. For this reason, few people thought that the military would attempt a coup in South Africa even after President F.W. de Klerk stunned his nation by announcing there would be free and open elections that would include [black] African voters. But democracy can also be largely the result of international pressures, especially with the end of the Cold War. Guatemalan democracy is largely maintained by such pressures. The generals know and are reminded by powerful economic interests of the great cost of any coup. Many countries are now trying to impose such costs on Nigeria. In this discussion I will call "strong" a democracy supported by the strong demands of its people, and "weak" a democracy maintained only by the fear its opponents share of the international repercussions of either a coup or the election of a nondemocratic party. The distinction turns out to be important. Guatemala is a weak democracy--a country where there always seems to be an authoritarian alternative waiting in the wings to challenge a new democracy. The candidate winning the second largest number of votes in the elections last month was widely regarded as a stand-in for General Rios Montt, who had been leading in the polls until the courts declared him ineligible to run because of the constitutional provision that bars the candidacy of anyone involved in a prior coup. The President leaving office had been put in place when his predecessor, Jorge Serrano, attempted to suspend the Constitution and close down the Congress. The weakness of the democracy encourages corruption and impunity for political violence. Guatemala is not alone. The possibility that democratic institutions will be replaced by far more authoritarian ones, either as the result of an election or of a coup, is real from Santiago, Chile, to Moscow. This talk of weak and strong democracies may sound very abstract to you. To me, it is accompanied by a storehouse of vivid images. I was working on a U.S. Agency for International Development (USAID) contract to build criminal justice institutions in Guatemala when the first attempt at a military coup against the first freely elected President in decades took place. Gramajo, the general serving as Defense Minister, ordered the colonels who had organized the coup to return to their bases. Then the President, Vinicio Cerezo, called for a mass demonstration of public support for the new democracy. President Cerezo's call was answered by only a few grade school students who were brought into the capital city by bus. The message was unmistakable: Cerezo's survival depended upon his retaining the good will of the general who was chosen by the army as Defense Minister. A weak democracy works in the shadow of the independent power of its military and its other undemocratic economic and political competitors. In Guatemala and in other weak democracies, votes are counted every 4 or 5 years and the count is usually fair. But there are policies that cannot be seriously entertained, even if they would be supported by a substantial majority of the population. And there are parties that cannot be allowed to compete fairly in the political process. A United Nations mission report of October 31, 1995, described Guatemalan police and army death squads directed both at common criminals and at politicians, human rights activists, and public prosecutors. It said between 10 and 12 bodies of people who were shot with their hands tied behind their backs were brought daily to Guatemala City's morgue. A coup by a powerful and independent military is not always the principal threat in a weak democracy. A new democracy may be weak because of corruption or incompetence (they often go together). The problem can be so pervasive that the electorate is likely to choose an altogether different form of government, hoping to find efficiency and honesty. This electoral threat to democracy is the one that has characterized Russia and would threaten important nations in the Middle East. What is common to both cases is the absence of strong citizen support for a system of popularly chosen leaders and policies. The existence of weak democracies poses serious problems for U.S. foreign policy. For very good reasons, we want stable democracies enjoying powerful internal support. They are far more likely to be long-term friends. They will be more secure and reliable economic and social partners. They can enjoy continuous domestic support and not involve us in painful compromises of our own ideals such as those that have recently been investigated in the CIA's relationship with the Guatemalan killers of an American and the husband of an American. But we also want the immediate benefits of cooperation even with a weak and limited democracy, particularly against enemies such as communism or drug cartels. Too often, I think our tendency has been to treat a very limited form of democracy as if it were as valuable to us as the stronger democracies of a South Africa or Costa Rica. Let me pause long enough to give an example of United States ambivalence on this score. In Guatemala, the attorney general has a small office, poorly funded and closely connected to the President. Still, the office has the advantage of not being tied to the military, a primary suspect in much political violence. Why not build an investigative capacity into the attorney general's office itself and then create a tradition of independence from both the police and the President in enforcing the law? The United States Attorney General enjoys this capacity and independence, and I think it serves us very well. Moreover, the idea seemed desirable to the Guatemalan investigative judges, who have investigative responsibilities (as is customary in countries whose legal system is not based on the British common law) once the police have brought a suspect to court or have filed a report of a crime in court. Their reaction was not surprising. After all, many matters were dangerous to investigate and cases were almost never successful. Indeed, cases were dangerous to investigate. In spring 1988, as we were exploring this idea with Guatemalan prosecutors sent to Cambridge by their attorney general, the chief of Guatemala's National Police, Julio Caballeros, seemed to have solved the case of a "death van," a white van that had been cruising the streets of Guatemala City and "disappearing" both politically active students and drug dealers. He had ordered the seizure of a van meeting the description of the death van, and it proved to be full of police from a separate organization, the Treasury Police, headed by a close associate of President Cerezo. In due course, Caballeros delivered to the courts-- particularly to Judge Trejo, an investigative judge of extremely questionable reputation--a number of suspects and a file that implicated their superiors up to the head of the Treasury Police. There were reports that Judge Trejo initially declined a bribe offered by a military judge. Whatever his motivations, his reward was to be kidnaped and, during the time he was held, to receive an unmistakable message. His good friend was, on the same occasion, seized, tortured, and killed. For the first time, I wrote to President Cerezo insisting that he understand the importance of a vigorous investigation of the kidnaping, noting the message that a failure to protect judges would send throughout the criminal justice system. There was no action or response. A number of Treasury Police, including its chief, had been ordered detained by the temporary judge who replaced Judge Trejo during his kidnaping. On his release, Judge Trejo was reassigned to the case, and he quickly dismissed the charges against all of the Treasury Police. There was no investigation of the kidnaping, which Judge Trejo insisted was unrelated to the case. Few believed him. Under routine procedures the file has always been kept secret. It soon became clear that neither Attorney General Polencia nor his successor, Attorney General Cardenas, was anxious to assume the responsibility for such cases. I could see why not. What was more surprising to me was the reaction of some of the leaders in the Department of State and USAID to my concern about all this. I was invited to Washington to a lecture by a highly respected senior foreign service officer about what had to be accepted in Central America. My hints that Harvard Law School would not work in an atmosphere in which the official perpetrators of terrible violence were given impunity were, I was told, naive or out of place. Later that year I received a far less friendly letter from one of USAID's senior regional administrators in Central America suggesting that I would do very well to change my advisers and staff to include those more familiar with the violent customs and cynical ways of Central Americans. The tone of the letter was superior; its level of indifference and cynicism was stunning. In the meantime Jim Michel, a dedicated ambassador and the founder of the Administration of Justice program, used every ounce of his influence to support my futile efforts to bring the Guatemalan attorney general into the process of investigating the most notorious of crimes, including those of political violence and corruption. All of his influence was needed because USAID's regional director was successfully mounting a campaign in Washington to prevent any such disruptive step. In the final analysis, Attorney General Polencia and President Cerezo--to whom Ambassador Michel made his case in the clearest terms--decided not to build such independence into the system. But the divisions within the U.S. Government as to goals and means had already become very apparent. Weak Law Enforcement and Strong Law Enforcement I have argued that a deep and widespread loyalty to democratic institutions is crucial to a strong, stable, and lasting democracy. That loyalty depends upon two conditions. The population has to believe that democracy works decently well in carrying out the tasks for which people must depend on from government. Beyond this, the support for democracy depends upon very large portions of the population having some measure of political influence and a feeling of equality before governmental institutions. Thus, for example, loyalty to democratic institutions in Northern Ireland was undermined among the large Catholic minority by their inability to influence crucial political institutions when they disagreed with the Protestant majority. In emphasizing that loyalty to democratic governments depends on a moderate level of effectiveness in providing the services people require from their governments and an adequate measure of fairness in making decisions, I have left out respect for human rights as a condition of loyalty to democratic institutions. Perhaps it too should be included, but populations are not tempted to turn from democratic to authoritarian regimes in the hope of achieving greater respect for human rights, in the hope of ending brutality or political repression. Policing or, more broadly, the law enforcement system has a crucial role in building and maintaining the sense of effectiveness and fairness on which loyalty to democratic institutions depends. As a start, nothing is more important to the citizens of a country than physical security. When a democracy is unable to provide protection against the predatory activities of other citizens, the call for authoritarian alternatives grows. That is much of the basis for the popularity of General Rios Montt in Guatemala. It is much of the argument for a return to more authoritarian regimes of the right or left in Russia. Even in South Africa, where democracy is blessed by widespread respect and an extraordinary leader in Nelson Mandela, an inability to control street crime was the number- one issue in the recent municipal elections in a South Africa that has been suffering 48 murders a day. The consequences are felt in terms of the economy as well as in terms of the fear of citizens. A healthy economy does generate support for democratic institutions, yet frightening crime statistics drive foreign investors away from Johannesburg as well as from the downtown areas of many American cities. So the effectiveness of everyday law enforcement matters greatly to the strength of popular support for democracy. Law enforcement also matters to democracy in terms of the sense of equality on which loyalty to democratic institutions also depends. A willingness to pursue corruption and to examine, without undue deference, the activities of the powerful and the well connected is an attribute of a strong criminal justice system that creates faith in democracy. By an extraordinary and courageous course of investigations leading from the Mafia to the political corruption of prime ministers, Italian law enforcement will create new faith in a democratic system that, in the time of the Red Brigades, many citizens hardly preferred to the alternative offered by the terrorists and which was the target of a nearly successful coup d'‚tat from the right. I could provide examples from Russia, Colombia, or Africa but, as usual, events in Guatemala are more vivid, open, and revealing. This time, drug-based corruption is at the center of my story: On August 1, 1989, someone gave an assistant luggage carrier for Guatemala's airline, Aviateca, a green suitcase and ordered him to place it on Aviateca's flight to Miami, bypassing all security channels. The assistant luggage carrier, Vasquez Castillo, was stopped by two warehouse employees who reported the incident to the narcotics airport unit of the national police and to the army intelligence officers stationed at the airport. The green suitcase was opened; it contained 25 kilos of cocaine. Vasquez Castillo told the police that the suitcase had been given to him by two men who identified themselves as representatives of the government organization "DECAP," an agency created to help President Cerezo control problems of corruption within his government. With more than 100 investigators and a larger budget than the attorney general's office, DECAP reported directly to the President. Its chief at the time was Lieutenant Colonel Hugo Moran Carranza, reported to be a close friend of the President. The luggage carrier, Vasquez Castillo, had identified two employees of DECAP, Rolando Moises Fuentes and Minera Naves, as those who had given him the green suitcase. In Guatemala, the only statements by a defendant that can be used in a court are those taken by judges, not the police. But the judges have no training in taking statements and the interviews of the two suspects the next day were poorly conducted by a justice of the peace. Both simply denied their guilt. Minera Naves produced the names of alibi witnesses; alibi witnesses are very easy to come by in Guatemala. The Guatemalan justice of the peace is required to send the investigative file promptly to an investigative judge, who has only 15 days to complete the investigation. The investigative judge is supposed to perform many of the functions performed by both the police and prosecutors in the United States and to do it in a far shorter period of time than we allot. That can be a dangerous job, and the investigating judge did not proceed very promptly against such dangerous suspects. The judge questioned Vasquez Castillo again. This time Castillo implicated his boss as well as a representative of DECAP. Castillo was obviously frightened. He thought that he might have been the real target when a witness had been assassinated a few days earlier. He said that he had been followed by four men in a red pickup truck, an ominous sign in Guatemala. The investigating judge, Julio Rene Garcia, was getting the point. He asked to be excused from the case on the grounds that his wife was remotely related to the luggage carrier's boss. He was excused. There had in any event been widespread rumors that Judge Garcia had received money to sabotage the investigation and, shortly after recusing himself from the case, Judge Garcia was fired from the court system. What is clear from many accounts is that the chief of DECAP, Lieutenant Colonel Moran Carranza, had spoken quite often with the judge and with those members of the judge's staff who were handling the case and that Moran had access to the case file so that he would know exactly who was saying what, a matter that frightened witnesses. One might wonder where the prosecutor was all this time. The prosecution was simply absent for the first 15 days of the investigation, not an unusual absence in cases that can be very dangerous. The case was reassigned to a new judge with only 1 of the 15 permitted investigative days left. That was not enough. The judge found that he did not have enough evidence to continue detaining the two DECAP employees, Minera Naves and Rolando Moises Fuentes. Under pressure from the United States, the case was reopened. At his trial, Minera Naves, who had by now threatened the brave female prosecutor and investigating judge with death, defended himself on the grounds that corruption was widespread in the Cerezo regime. He alleged that the brother of the Christian Democratic Party's presidential candidate was involved in drug trafficking and that a witness to his transactions had been murdered. He charged that President Cerezo's brother had been involved in corruption, selling passports when he was director of immigration. He said the army, the national police, and DECAP all knew about the crimes that were committed but refused to investigate and that Lieutenant Colonel Moran Carranza, his boss at DECAP, had told him he was under orders not to investigate such cases. These charges were made in the new form of a public hearing, causing an immense sensation. Minera Naves and Rolando Moises Fuentes were acquitted. The patent inability to get to the bottom of charges of very serious corruption against those very close to the President and the leadership of his party, despite an extraordinary intervention of the U.S. Ambassador, who publicly characterized one of the defendants as a drug suspect, stood as a reminder at the end of President Cerezo's administration that the democratically elected government could and would protect its own people, that personal wealth was a central motivation of many elected officials, and that corruption of courts and intimidation of witnesses was sometimes, perhaps often, part of the system of justice. For many people and groups to support democracy strongly enough to stand up against a military coup, the administrations that are products of the democratic process must be willing to pursue allegations of corruption of the sort I have just described. If they were, without pressure from the United States Government, there would be far more reason to believe in democracy. A system that cannot effectively prosecute ordinary street crimes is hardly a criminal justice system at all. But a system that can prosecute only ordinary street crimes and that cannot prosecute crimes involving prominent or powerful people is a weak system of criminal justice. A weak system that does not deal with corruption or extortion of the sorts that are rampant in Moscow, that cannot deal with the wealthy and powerful (as was true until recently in Colombia and in Italy), and that cannot prevent systematic violence or intimidation by its own security forces (as has been true at one time or another within the last decade of South Africa, Israel, Spain, and Northern Ireland) is an open announcement that there is inequality in fundamental political rights and a public invitation to disloyalty toward the democratic institutions of each of these countries. Every country will sometimes have corruption, favoritism, and efforts at intimidation. But a willingness to cover these up by controlling and limiting the activities of the crucial factfinding agencies in a democracy--law enforcement authorities and oversight committees--is a signal to large portions of a population to hold on to their wallets, keep their heads low, and withhold trust. The Complicated Relationships Between Confidence and Fairness in Law Enforcement I have argued so far that a weak law enforcement system--one that can handle only ordinary street crime--leads to a weak democracy, one that must operate without the spirited support of most of its population. Even if you accept my argument, however, a major tactical question remains: Is the shortest path to a strong justice system in a fragile democracy the slow building of competence in the police and other law enforcement institutions, or does it require a forceful stand on issues of corruption, bias, political violence, and intimidation? That question is of fundamental importance for those trying to build democratic institutions and strong justice systems. When I first went to Guatemala, I wrote to the Minister of the Interior, Juan Jose Rodil, saying that the USAID/Harvard project should begin only if there was a commitment to proceed against political crimes as well as ordinary crimes. He argued strongly against this approach, saying that the first step was to build the ordinary capacity of the police, the prosecutors, and the courts. When they were capable and respected, perhaps in 10 or 15 years, somehow a capacity to investigate and try violence and corruption from the highest and most powerful levels would emerge. This much of Rodil's argument is surely true. It is hard to detect a coverup when it is buried in massive incompetence. Thus, the political pressures to deal equally with the well connected, the powerful, and the wealthy are hard to bring to bear when the reason for exoneration may simply be general incompetence of the criminal justice system. A system that is quite competent, such as ours, often leaves an attempt at coverup exposed and obvious, with the devastating political results that we saw in Watergate. But aside from this aspect of the politics of coverup, there is little reason to believe that the strengthening of law enforcement institutions will, in itself, lead to an expansion of their jurisdiction into areas uncomfortable for governmental leaders. The Israelis would not investigate the murders of two terrorists who had seized a bus in the Negev desert. The British would not investigate the killings of IRA activists in Gibraltar and closed down an investigation by a distinguished police commissioner in Northern Ireland. For decades, the Spanish hid from their courts governmental involvement with "GAL" and its assassinations of Basque terrorists. Beyond that, it is difficult to develop a truly competent system in the way that Juan Jose Rodil was urging: by beginning with common crimes and steering clear of the crimes of the powerful. Bias corrodes respect for the police, and without respect, the police are denied the public assistance they need even to deal with ordinary crime. We are paying that price in our central cities from the Bronx in New York to the South Central District in Los Angeles. It is a price likely to be exacted far more severely in the former Communist states and in Latin America. The issue has always been a difficult one for the United States as it offers assistance to other governments. I can only tell you my own conclusions. I think it is worth taking the political risks of investing in a strong criminal justice system that is willing to and capable of investigating the powerful and influential. A strong criminal justice system plays a major role in developing a strong democracy, and our national interests are much better served by a strong democracy than by a weak one. I think the chance of developing a strong criminal justice system by slowly building competent institutions without pressing for their equal application to the powerful as well as the weak is small--based either on extreme optimism or on deep cynicism. With the encouragement of President Bush' s friend, Ambassador to Guatemala Thomas Strook, I ended the USAID/Harvard project when there was no apparent effort to investigate the disappearance of 12 university students 6 years ago in Guatemala City. I visited the Minister of Interior, the Minister of Defense, and the President, accompanied by Embassy officials, and explained that we would not take part in the creation of a system of criminal justice that was designed to be weak and not to reach the powerful and influential. This created an immense stir in Guatemala, magnified by the strong statements of a strong ambassador. I think we did what was necessary. Incremental institution- building efforts over the last 6 years have left a system that the United Nations describes as incapable of protecting even its own prosecutors and judges, let alone the ordinary Guatemalan. What Can the United States Do to Help? It is simplest to begin with a reminder of the tasks that have to be performed by any criminal justice system. We all know that there is a very substantial variety of systems, but the central tasks are common and, to accomplish them, each of the systems uses some combination of police, prosecutors, defense attorneys, judges, and juries. The common functions are as follows. The system must become aware that a crime may have been committed. Then a decision has to be made whether the matter is worth investigating. Then there must be an investigation. Then a decision has to be made whether the matter warrants a trial. Then someone must present evidence to the factfinder. There must be a process for testing the validity of that evidence, providing contradictory evidence, and developing alternative explanations of what it all means. Someone must decide on guilt or innocence and the consequences if the finding is guilt. Very generally there is an appeal. To describe these functions as common from Thailand to Guatemala to Tanzania is not to deny some immensely important variations in how they are carried out. In much of Latin America there has been no or very little prosecutorial role until the last few years; and the evidence has been read, not heard, by the factfinder. There is hardly a defense function for the great majority of cases in South Africa and in much of Latin America. The prosecutor is remarkably powerful in Japan and was in the Soviet Union; the judicial function is proportionately diminished. Still, with all this variation, it is important to remember the set of functions that are widely recognized as essential parts of the process of convicting the guilty, protecting the innocent, and doing this with decency and credibility. Why Criminal Justice Systems Fail It is tempting, but a mistake, to look only at the discrete functions that a criminal justice system must perform and conclude that fixing each of them, one at a time, will solve the problem (i.e., produce a system that convicts an adequate number of the guilty, assures that the innocent are not convicted, and does this without treating citizens indecently or unfairly as part of the process). Criminal justice systems fail for a number of reasons; weaknesses of design are only one of them. Let me review the major possibilities. A comparison to four possible sources of malfunctioning of a clock may provide a useful mnemonic device. If the clock doesn't work, (1) there may be something wrong with the system of gears; (2) it may lack the resources--battery or winding--to make it go; (3) someone may be tampering with it; or (4) someone may have put it under water or in some other environment where it is not designed to work. Now consider the four with regard to a criminal justice system. First, something may be wrong with the system; the procedures may be so badly flawed that they can hardly work. Let me give two examples from Guatemala. For some labor-intensive investigative tasks, police are essential everywhere in the world. Calling individuals before a prosecutor, grand jury, or judge is simply not an adequate substitute, in part because it is too cumbersome a way to identify potential witnesses. Guatemala does not use police in this important way, and the possibility of finding the truth suffers because of it. Consider another example. The factfinder in Guatemala must decide on the basis of reports written by staff working for an investigative judge. The staff do not generally probe witnesses or seek additional evidence that would confirm or rebut the statements of witnesses. As a result, the factfinding judge is regularly left with a record that involves several witnesses implicating the defendant, several alibi witnesses stating that the defendant was elsewhere at the time, and no way to resolve the dispute. Worse, if some of the witnesses worked for the victim or are related to him, the trial judge is directed by statute to wholly or substantially disregard their testimony. Thus, either the normal burden of proof or the results of special evidentiary rules make it very unlikely that anyone will be convicted. Second, like an unwound clock, even if the system is sensibly designed, the processes necessary for finding the facts and convicting the guilty may regularly fail because of inadequate resources. Some forms of this are obvious. Having too few police or prosecutors or judges or, most often, defense attorneys, is a common problem in countries pressed by tight budgets. Similarly, the facilities, equipment, and support staff are in general shockingly inadequate. All this is compounded where the civil law tradition purports to require police investigation and then prosecution and adjudication of every factually provable criminal act without any discretionary sorting in terms of the importance of the matter. Another inadequate resource is intangible and therefore less apparent although equally important. Contempt for the police in many Latin American countries prevents the cooperation of victims, neighbors, and other witnesses--cooperation that is essential in every country for the detection and investigation of most crimes. The low status of judges and prosecutors, reinforced by low salaries and excessive workloads, discourages cooperation at a later stage. It is a Herculean task to change citizen attitudes toward police who, in a country like Guatemala, must often buy their offices for a sum that can only be recaptured by corruption. It is just as difficult to change attitudes toward judges and prosecutors in a country like Russia when they are part of a structure whose independence has long been suspect. Often low status cannot be made to rise without wholesale firings and new levels of salary. (A distinguished member of the establishment in Guatemala told me that the poorest and least well- connected law students in the state university divide their time between careers as taxi drivers and as judges.) Just as a beginning, the task of changing public attitudes toward police, prosecutors, and judges requires overcoming the sense of hopelessness, helplessness, and disrepute that pervades lower bureaucratic levels in many countries and makes indifference and corruption seem sensible responses to the situation. Before turning to the last two reasons why systems fail, I should note that there are always two plausible and competing explanations of the deeper causes of the first two reasons for failure. Foolish design and tragically inadequate resources, including lack of credibility with the public, may be the undesired results of societal poverty, disorganization, and despair. Alternatively, they may be what powerful individuals want. That no more money and attention is dedicated to building the resources of the criminal justice system does reflect comfort with its irrelevance in the minds of many, some of whom enjoy the protection and the freedom from the constraints of law that come with control of private security forces in Latin America. That the system does not seem to be designed to bring out the truth is often a planned or accepted result of the fear of lawyers and judges that it can be turned against the innocent by a hostile government, a fear that is expressed in a set of systems that weaken the least dangerous branch at the same time as they preserve its purity against misuse. Like a clock that has been tampered with, a third reason criminal justice systems fail is because they are vulnerable to abuse by wealthy, powerful, influential, or simply ruthless parties. Intimidation of witnesses is a serious problem in the United States but a far greater one in Latin America, South Africa, and Russia. Intimidation of prosecutors and judges is rare in the United States. A former Minister of Justice was killed on the streets of Bogota while I was working in Colombia. A judge, who had announced that he had a powerful case for murder committed by senior leaders of a branch of the security forces in Guatemala, was kidnaped while we were working in Guatemala. Corruption is more genteel than intimidation. It is also harder to substantiate, but it is believed to be widespread in the justice systems of many of the countries I have been discussing. One of the judges with whom we worked most closely in Guatemala was relieved from his position for demanding bribes; major drug dealers were believed to have paid to shape the new rules of criminal procedure in Colombia; corruption is endemic in the new Russia. Above all, there is a continuous entanglement of influential political supporters with the careers of judges in places such as Guatemala. President Cerezo's pleasure in the dismissal of a criminal case against a relative was fervently, and perhaps practically, conveyed to one of the judges working with us in Guatemala. It took the form of later help in obtaining credit for a business investment. The result of all this is that the wealthy, the powerful, and the influential are rarely tried in Latin America. Fear and greed shape or eliminate witness testimony throughout the developing world, in Russia, and in South Africa, too. Beyond being morally repulsive, the too obvious failure of the rule of law undermines public acceptance of even that part of the criminal process that could operate by enforcing the law against those who lack the power, wealth, or status for impunity. Fourth, a clock can't run under water. Correspondingly, last in my list of major reasons that criminal justice systems fail are the special and often overwhelming problems of severely divided societies. A segment of the society may be in a state of rebellion against the central government. That was the situation in Guatemala when we were there. It was also true in Colombia. War is a solvent of both justice and truth. Warriors don't care much about either. I met with murderous colonels in the embattled highlands of Guatemala who asked, in bewildered tones, what I thought they should do with people they suspected of being supportive of guerrillas other than kill them. My answer, to try them in court, seemed incredibly naive to them. Even when there is not guerrilla warfare or other open and armed rebellion, a criminal justice system cannot easily deal with extreme and violent hostility by a proud group against the government. It doesn't work in Belfast or Kwa-Zulu. For a group member to furnish information or evidence of even common crimes becomes unpatriotic and very dangerous, and without that citizen cooperation, the system either collapses or becomes brutal and lawless. These are, I believe, laws of nature. How Can the United States Help Build a Stronger and Fairer Criminal Justice System in a Foreign Country? Our experience suggests that representatives of other countries can help build a criminal justice system in four ways. Broadly they can: o Provide financing for needed human and material resources. o Provide technical advice. o Provide hope and energy to a system that is despairing and immobile. o Bring international and domestic pressure to bear on local elected leaders and, where necessary, leaders of the military. The first hardly requires elaboration. Evidence in Guatemala was recorded by interviewers who simultaneously typed, in five copies with carbon paper, on old mechanical typewriters. The third, fourth, and fifth copies were rarely legible although they played an important role in the processes. The interviewers were so busy typing that they never observed the defendant or witness answering the question and rarely followed up with probing questions. The typed reports were bound with ribbons and stored in old file cabinets. All this was done in an open bullpen that looked like a movie version of a police detective squad room. No witness enjoyed privacy as she told what had happened. Tape recorders, word processors or at least electric typewriters, photocopy machines, and space dividers can and do make a substantial difference. But resources make a real difference only if their provision is part of a broader plan carefully monitored and encouraged along the way. I am afraid that is rarely true. We furnished Polaroid cameras so that justices of the peace could photograph crime scenes but later found them stored, along with video recorders, in a closet, thankfully not yet stolen. Similarly, we worked on simple forms as an investigative checklist to be used by officials asking questions in particular cases, such as homicides. When we asked later why the forms did not seem to be used, the answer was that no one had arranged for reprinting or photocopying them. These stories are perhaps a good introduction to the second gap that foreigners can fill. In Guatemala, Colombia and, to a lesser extent, Russia and South Africa, assistance provided the momentum of hope, energy, and American impatience. The slow pace of events in Guatemala was a constant frustration to the Americans and a source of friction with our judicial, prosecutorial, or police associates in Guatemala. But our very presence gave impetus to what had been immobile for very long. Our expectations that something would change proved infectious; nothing in the experience of the Guatemalans gave them reason to believe that anything would change. Sharing in our hopes and excitement became an adrenaline-based reward for people who had long since stopped caring about their work. There is a serious problem here, one that I should not ignore. When we departed, we left behind all the blueprints for a continuation of a process of step-by-step building of new courts with new procedures. But our departure, motivated by the desire to repudiate the indifference of the government to the killings of students, drained the energy of the people working in institutions we had been helping to create and let hopelessness creep back in. Without our energy, the work hardly survived except as a memory of a short period of hope and innovation. Third, the international assistance brings with it a certain amount of political muscle. Every nation that is at least partially democratic cares about what its public thinks. Every nation relying on international good will cares about its international reputation. Those bringing assistance from influential nations or international bodies bring with them a certain amount of political influence traceable to both of these forces. When we objected to the militarization of patrols in a rural area of Guatemala in which we were working, the Minister of Defense arranged for the withdrawal of the military component of those patrols. When we objected to the appointment of a military intelligence officer to a particularly sensitive position in the police, the appointment was withdrawn despite considerable embarrassment to the chief of police. When we needed meetings at a high, medium, or low level with the officials with whom we were dealing, they would occur. Thus, we could bring a degree of political support to a plan worked out with the criminal justice officials of Guatemala that they could not muster on their own. It was that political support, domestic and international, that I decided to expend, in one burst, when 12 students were "disappeared" in late 1989. I demanded a serious investigation and threatened and then delivered a quite substantial outcry in Guatemala and in the United States when no serious investigation took place. I have left until last the most interesting matter. From what source can outsiders also provide insight toward the solution of problems that the local officials have lived with much longer and understand much better (assuming, as I trust we all do, that it makes no sense to try to transfer American, British, French, or German institutions wholesale to a country whose politics, culture, and economics are very different)? What do we have to offer in the way of advice? I think there are two different answers, one bearing particularly on diagnosis, the other on prescription. I have included these in the appendix to this presentation for those who are interested. Conclusion It is time to draw to a close this description of the perils and prospects of undertaking law reform in another country, particularly in countries where democracy is new, flawed, or embattled. I have not spoken of the gratification in the process: the thrill of exaggerated hopes, the friendships formed, and the sense of a shared enterprise that is not entirely safe. They are all there. My colleagues and I have enjoyed the process almost everywhere. I have described why the effort is important, what ways the "clock" of the criminal justice process can be broken, the ways in which outsiders can help, and how it all depends upon politics as well. Still, at the end, I have a feeling that I have described something too difficult for frequent success, too subtle for most government work, too frustrating for a long-term national commitment. I hope that is not the message that I left you with. There are wonderful successes. We brought oral trials to Guatemala, and the enthusiasm of the public at seeing justice done produced an irreversible effect. We helped the Russians plan jury trials. In that country, where tradition precludes trust in judges, jury trial has a powerful claim. We wrote the police practices for managing demonstrations in South Africa and brought to an end a source of unnecessary but regular killings and resulting deep resentment. Assisting criminal justice systems abroad is a task requiring thoughtfulness, openmindedness, patience, and commitment. Often the effort fails, and to a large extent our effort in Guatemala did. But the rewards when you succeed are immense. It is an effort well worth our government undertaking, well worth the participation of anyone who cares about justice and democracy. Appendix: Providing Advice Across Law Enforcement Cultures There are many ways to perform the functions of a criminal justice system and a number of agencies a state can use in differing ways. What are constant are the functions that must be performed and the obstacles that must be overcome. The role of the U.S. adviser is to force a very American focus on the functions and problems. Then it is up to the officials seeking advice to design who should do what to satisfy the need in a way consistent with local history, fears, capacities, and beliefs about institutions. Diagnosis At the level of diagnosis I believe that we do have some knowledge that is robust enough to be of value in very different settings. It simply has to work at a higher level of generality than we, as lawyers, are usually accustomed to. It does no good to urge--as some in the U.S. Government did--that Colombia would be better off with prosecutors, especially if they were attached to the executive branch rather than the judicial branch. Prosecutors mean too many different things in too many countries, and the nature of interbranch relations is also too contingent for our notions of separation of powers to be useful here. But at a more functional level, we can talk about what prosecutors do in different systems, see if those functions are being adequately performed in the criminal justice system seeking advice, and ask whether a prosecution office in a particular country can be made to operate like those in other nations where they are effective. To understand what I mean about the robustness of such knowledge, consider some of the things we know about one very important responsibility of criminal justice systems: solving at least those crimes for which there are witnesses. Start with a functional description of what a working criminal justice system requires to find the facts. The description is, I believe, very generally true of criminal justice systems whether in North America, South America, Europe, Africa, or Asia. No system can get far at solving crimes and then providing the beneficial effects of conviction and punishment unless it knows that the crime has taken place. For some crimes, such as crimes of corruption, there is no obvious complainant who will know of the facts. These crimes are unlike assaults, robberies, and burglaries in this regard. But we set ourselves the task of helping with violent crimes and these have victims or, in the case of homicide, the families of victims who can complain. Even if the police, the prosecutors, or the courts are aware of a crime having been committed, it is relatively difficult for them to solve the crime unless the victim or other witnesses are able to identify one or a few suspects by observation at the time of the crime, by providing information as to possible motivations, or perhaps in some other way. There is simply no efficient way for the police to check what hundreds of people may have been doing at the time of the crime or even to compare the fingerprints of everyone in a neighborhood with one fingerprint found at the scene of the crime. The police cannot search 100 homes or interrogate 100 individuals hoping for a confession. All this is too costly in any but the rarest of cases--costly both in terms of police resources and also in terms of the public outrage it would engender. Thus, there are crucial functions that have to be performed by victims and other witnesses in solving crimes. Maintaining their belief in the usefulness of providing information, appearing in court, and subjecting themselves to whatever that involves is the most important single requirement of any criminal justice system. It is a mistake to think that physical evidence, of the sort Sherlock Holmes used, can compensate. If the police have found fingerprints, hair, and blood at the scene of a murder, they may be able to compare them to those of particular suspects with devastating effect, but only if the victim or other witnesses have already identified the particular suspects. So trust in the police and in the efficacy of the criminal justice system is essential for investigative success. In every system, because of the centrality of live witnesses, intimidation of victims and witnesses becomes an important possible move for violent defendants. Preventing intimidation is a sophisticated business. It requires finding ways to use the information from witnesses without letting the source be known, obtaining the information before the threat is made, or making a difficult- to-accomplish effort at protection. It also involves making the prosecution of efforts at intimidation a serious objective of the police, prosecutors, and courts. I have so far been talking about what it takes to "solve" a crime; i.e., to determine who did it to the satisfaction of the police. Conviction takes more in every modern system. What I have said so far indicates that detective squads (often called "judicial police" in civil law systems) are not going to "solve" many violent crimes. They are essential, however, for turning the knowledge of who committed the crime into evidence and rebutting the alibi of the defendant. This followup investigation, at the request of a prosecutor or investigative magistrate, is often essential to conviction if the system truly imposes a strong burden of proof on the government. In its absence, one is likely to be left, as in Guatemala, with inadequate evidence to counter even a weak alibi. Even if there is an effective use of the police for these purposes in preparation for trial, the system must involve some effective means for choosing among the competing stories of defense witnesses and prosecution witnesses. In Latin America, there has long been a reliance on rules that are intended to separate the more credible from the less credible witnesses by evidence of bias or inconsistency that is apparent from the written record alone. They cannot and do not work. In the United States, we rely primarily upon cross- examination and the factfinder's observation of demeanor (the appearance of the witness as she testifies) and, to a lesser extent, on the effect of an oath and the threat of prosecution for lying. The defendant himself is an important source of evidence in most countries, even though a number of criminal justice systems around the world deny or limit the effect of a confession given by the defendant while in police custody. In the United States, where we have sharply limited the capacity of the police to force a confession, many cases are still solved by confessions that result from the desire of the defendant to talk his way out of custody or future trial. And we use deals made with the defendant or his associates as a way of exchanging less punishment than the crime would otherwise warrant for either a guilty plea or testimony against a colleague. European systems provide a substitute by enabling judges on the court to question the defendant and others, and giving judges or lay factfinders the freedom to draw conclusions from the defendant's relatively infrequent failure to respond. Every system must also have some way of sorting the cases that deserve more attention from those that deserve less. In the United States, one of our uses of plea bargaining is to dispose of relatively unimportant cases. France, Germany, Italy, and Russia each have their own systems to accomplish this, which differ sharply from ours and from each other. The point is simply that the problem of focusing attention on the more important crimes is essential in almost every system. If I now compare this list of very general requirements with how the Guatemalan, or Colombian, or South African, or Russian criminal justice system works, I can identify crucial weaknesses. To take a clear example, Guatemala's system failed to sufficiently encourage the cooperation of victims or other witnesses, exaggerated the potential for using physical evidence, ignored a massive problem of intimidation, regarded the police as almost irrelevant to investigation, lacked a way for factfinders to choose between competing prosecution and defense stories, failed to make use of a defendant's knowledge, and lacked a system for disposing of the less important cases so as to leave time for the more important. A set of quite robust judgments about the processes of factfinding allows a diagnosis of the nature of the problem. Prescription Prescription is another matter. A comparative perspective provides a number of alternatives that may not have been considered. But it does not deal with the immense importance of the political, social, ideological, and economic context of any legal structure or procedure nor does it deal with the relationship of the particular alternative being proposed to other parts of the very same criminal justice system. How then can outsiders be of help at the level of prescription? In the realm of prescription, what works best is a fairly patient dialogue. The foreign consultant brings to the dialogue two things: a sense of the relatively robust requirements for getting important parts of the job done and a list of alternative ways these requirements are met in different systems. Local practitioners bring to the conversation crucial information about what functions are not being performed adequately now and some knowledge of what, in their society, is the likelihood--and what would be the consequences- -of adopting one or another of the alternatives suggested. Out of the discussion can come a joint understanding of what are the real gaps in the present system and what alternatives are promising and not dangerous. The idea of a dialogue is so central that I should illustrate. A Guatemalan judge might complain that there is no way for her to resolve the conflicting stories, reduced to writing, of the victim and the defendant. One of our team might then ask, "Can you not get additional witnesses?" The Guatemalan would respond, "We already called those witnesses suggested by the victim or the arresting officer who responded to the event." We would say, "Why don't you use the police to look for additional witnesses, as more criminal justice systems do?" The answer might be, "We don't trust the police-- for these reasons . . ." Now the possible solutions are narrowed and informed. Could we not create a special investigative unit that could be trusted, or have the investigation carried out under the supervision of the otherwise idle prosecutors, or ask witnesses specifically whether they have been told what to say by the police or by one of the parties? Alternatively, can we realistically hope to change the police? The resulting prescription, whatever it is, is attributable to both parties and is far better imagined and better assessed because it is the product of an informed dialogue. We used much the same process, during 3 straight weeks of meetings, to review with Russian draftsmen their proposed new substantive code of criminal procedure. The system works in much the same way; dialogue is again central. I remember our discussing the peculiar and very vague crime of "hooliganism." I said, "Why not eliminate that crime completely because it is so subject to abuse?" The Russians responded with a set of specific problems, deeply embedded in Russian society, that the crime was believed essential for addressing. Again, as a result of the dialogue, the stage is now set. Other countries, I said, address those problems by A, B, or C. The Russians responded that B would not work and that A would not be acceptable. C, on the other hand, might be possible and would only involve an amendment of the hooliganism statute. Let me give a final example that combines the role of diagnosis and prescription in what I think is an especially revealing way. Intimidation of judges is obviously a particularly serious problem in Colombia. Pablo Escobar alone was responsible for several judges' deaths. Colombia's response, like that of Peru in its trial of Abimael Guzman, has been to maintain the anonymity of judges. The danger is even greater, far greater, for witnesses. Here, too, Colombia uses anonymity as a protection by allowing witnesses who testify to be identified only by a fingerprint. Consider the more troublesome practice: the use of anonymous witnesses. Two problems spring to mind. Such witnesses cannot easily be questioned by or before a skeptical factfinder, leaving the possibility of police concoction of crucial evidence in a situation where the police and major drug dealers are in a state of near war. Colombia addresses that by having questioning done by judges through one-way mirrors and with voice distorters. Still, that leaves the problem of biases that would be known only to the defendant and only if he knew who the witness was. For this there is no present answer under the Colombian system. Can our experience help? Intimidation of witnesses is also a serious problem in the United States. The most important device we have for handling intimidation is the ability to use informants as the basis for gathering other evidence from sources not so easily harmed or intimidated. We can promise an informant secrecy and obtain a search warrant or a wiretap. We can try to place an undercover operative in the organization. In each of these cases, the ultimate witness is a police officer and not the endangered and frightened citizen. Beyond that, we induce the necessary cooperation from frightened witnesses by plea bargaining as well as by the use of a grand jury with the capacity to offer immunity. All these alternatives--as well as those used by the British in Northern Ireland, the French, and the Italians--come to mind as soon as the underlying problem is carefully diagnosed. The Colombians may object that some of the alternatives, such as the use of undercover agents, require too great a departure from their legal tradition. Some, they may think, are more dangerous than the use of anonymous witnesses at trial in the different context of Colombian society. But the discussion can explore the possibilities fully and in an informed way. A Final Word About Institutions I have emphasized the importance of diagnosing at a functional level rather than at a level of institutions or even procedures. Still, in considering alternatives (prescriptions), the relatively enduring characteristics and reputations of broader institutions are also relevant. South Africa has a strong judiciary, a relatively bureaucratic prosecution, a weak public defense, and a police force deeply distrusted by much of the black population and for good reason. Expanding the control of the police by the judiciary may thus be helpful. Russia has a weak judiciary, a strong prosecution, a traditionally weak defense, and a police that has only recently lost a reputation for frightening ruthlessness. Building a strong and independent judiciary as a crucial ingredient of public trust will take time, but in the meantime jury trials can create trust in factfinding where there was none. Guatemala has a weak judiciary, an almost negligible prosecution, an ineffective defense, and a hardly competent but brutal police. You have to start there on a very broad front. This information about the capacity and credibility of institutions tells you something about what there is to build upon, what must be constrained, what should not be granted greater powers, and what is not operating at its full potential. Expanding prosecutorial responsibility for the police might be wise in South Africa. In Russia, where the prosecution has been dominant for too long, nothing is more important than building the strength of judicial institutions. Colombia and Guatemala could both benefit from a stronger defense, but only if the prosecution is built up first. This type of judgment is also important. ----------------------------------- KEYNOTE ADDRESS: AMERICAN LAW ENFORCEMENT PERSPECTIVES ON POLICING IN EMERGING DEMOCRACIES by Raymond W. Kelly Thanks to reformers such as President Franklin D. Roosevelt, the police in this country are, by and large, an apolitical group, beholden to no politicians, selected through civil service examinations, and independent of abusive State or Federal authorities. Unlike many other places around the world, here the police are not called upon to prop up or defend the state. They make it almost impossible to libel a public official in the United States; and unlike Great Britain, they make it very difficult for the state to keep an official secret. Police in America don't arrest people who speak against the state. That is an obvious and important distinction to be made between law enforcement here and in many areas of the world. Growing out of our revolutionary experience, we are still suspicious of a standing police authority at the national level. Something also persists from our experience in the American civil rights movement. Police in America have come to accommodate even the timing and manner of arrest used on people engaged in civil disobedience. They have shown that accommodation frequently here in Washington during the protest campaign to end the apartheid government in South Africa. Civil disobedience has become a tool of dissent, recognized both by citizens and law enforcement of the United States. There is yet another distinction about the police in a democratic society. Nowhere is free speech as vigorously protected as it is in the United States. The police in America, as an institution, recognize how important free speech is to the American people, who will sacrifice a great deal to ensure it. So when the police in America engage in brutality, partisanship, or oppression, it is big news indeed. In some foreign countries the police are expected to engage in brutality, partisanship, and oppression. That is their job. In Haiti, we once asked, hypothetically, how the police might handle a large crowd assembled in front of the police headquarters. One of the interim Haitian officers raised his hand and said, "Beat them?" He thought he had the right answer, and under the old regime it would have been. Several years ago, one of Haiti's politicians had taken the risk of making an antiregime speech in front of police headquarters. A plainclothes officer came outside and shot him in the head in front of civilian witnesses. Certainly, people in this room know that in America we have our own problems with corruption and excessive use of force among the police, but these never reach the level of impunity practiced in Haiti under the old regime or practiced among dictatorships around the world. American police problems pale by comparison with those of emerging democracies. For one thing, we recognize corruption and brutality as problems that need to be corrected, not as qualities in the leadership to be accepted. I got a sense in Haiti that the police waited in station houses, playing dominoes, until they received orders from higher up to go out and do harm. There was no tradition of public service that one could associate with the police. Police officers were assigned to traffic duty, but little else was done to accommodate the public. There was no attempt to combat corruption. The police were not expected to conduct thorough investigations of accidents. We learned this early on from a bus accident in which five people were killed and no regular police responded with an investigation. Police did not respond, they did not remove the injured to hospitals, they did not remove the dead, nor were they of much assistance. Good samaritans in the town where the accident happened took it upon themselves to bury the unknown victims on the spot. This was deemed a public service in light of the hot weather. Preparing for an invasion of Haiti, the planners envisioned having a separate police monitoring force. This was a good idea for two reasons. First, Haiti's police were notoriously bad and indistinguishable from the Haitian military. If the U.S.-led invasion was to take out the Haitian army, it made little sense to leave the police in place. Secondly, the American planners recognized that it was best to have police interacting with police rather than with the soldiers. Instead of having only soldiers act as police, we had police from 20 different countries interact as monitors with the Haitian police. It was a simple idea that turned out to be brilliant. We have the Department of State's Bob Gelbard to thank for putting it together. Bob brought professional and highly motivated police from about 20 countries together with about 300 translators. The total package of about 1,300 international police and personnel constituted a monitoring force. Bob also thought about simple things like recognizing that French is not the same as Creole. He supplied enough Creole- speaking interpreters to accompany every patrol in Haiti. They gave a lot of themselves. I have spent a career in law enforcement, and I was very impressed with the caliber of the police monitors from countries as diverse as Belgium, Benin, Australia, and the Philippines. Each country had made it a point to try to send the very best. As a result, we had a professional, disciplined, experienced police force monitoring the Haitian police. Our job in Haiti was frequently complex. First, we had to stop human rights abuses by the Haitian police. Second, we had to monitor the retraining of the remaining force. Third, we had to pave the way for the U.S. Department of Justice to set up a program to train new people. The first part was relatively easy. In our monitoring of human rights, the Haitian police were afraid of us, afraid for their future, and afraid of the public. While Haitian police were agreeable to stopping human rights violations, they were not particularly enthusiastic about functioning in our new matrix until a new force was in place. Given Haiti's total lack of experience with police as most democracies would know it, we should not be surprised that the international police monitors' experience and conditions were so harsh. The life- threatening situations were many, especially in the first few months of our operation. Very often this involved stopping mobs from exacting street justice on each other or common criminals. Sometimes a political rationale would be used to settle a personal score. The monitors were also directly engaged in public services commonly associated with the United States and not with Haiti. Such services included, for example, responding to the bus accident that I described earlier and disaster relief in the case of a hurricane that struck while we were there. Very often, police monitors put injured persons and corpses into their own vehicles to get them to hospitals and to provide for the dignified removal of the dead. This is the kind of service we would normally expect of law enforcement, but one thing the Haitian police did not have was a tradition of public service. They also simply lacked the vehicles. In my judgment, it was important for the monitors to be fully engaged proactively. To do otherwise would have undermined our credibility and clashed with a professional police attitude that encouraged them to act with a sense of duty in a required fashion. To put this much in action, the Haitians needed new vehicles, along with instructions to control the restructuring of their profession. Initially, it was the tendency of the foreign police monitor to sit in the front seat of the vehicle while the Haitian officer and the interpreter would sit in the back. In a two-door vehicle, this meant that the police monitor would be the first out of the vehicle. This arrangement reinforced the Haitian officers' tendency to hang back and let the monitor do most of work. Soon we insisted that the Haitian officer sit in the front. That meant that he would be the first out of the car and the first to engage. It seemed a simple idea and came initially from the Australian monitors, but it was an important mentoring tool. The U.S. Army, U.S. State Department, and supporting contractors established our own communications network that we maintained with the commanding and operations officers of each foreign contingent, who met twice a day to address deployment issues and strategy. Unlike the United Nations, which would integrate each of the teams of police from various countries, we kept individual contingents--in fact, separate factions--and assigned them to different regions. For example, the Bolivians patrolled a border town where there was a high concentration of Spanish speakers among the population. We assigned the Israeli contingent to a particular area of Port-au-Prince. All the Jordanians were assigned to the opposite side of the town. Each contingent brought its own strategy. In addition, the international makeup had the advantage of conveying to the Haitians that this was not simply an American operation. I think that idea was better conveyed by the fact that the national groups were deployed in force in a particular area. All of the contingents shared democratic values, but it was necessary to articulate the importance of democracy. There are only so many interpreters who can translate Arabic to Creole. Deploying the foreign contingents in discrete units was, I believe, essential to the integrity of our command structure and better for morale. The police monitors were better organized and more confident with issues. We deployed some contingents within 24 hours of their arrival in Port-au-Prince. Again, the foreign contingents had a level of professionalism that could be expected in a large American police department. For example, the Bolivians engaged the Haitian police in a complex narcotics investigation and even organized a sting in which Haitian police arrested a corrupt Haitian police supervisor, definitely a first in Haiti. The Israelis were experts in community relations and quickly made the public feel welcome, encouraging requests for police services. The Belgians could organize a local population to meet immediate needs. In one of the few shooting incidents, we had a Haitian government police doctor treating a Haitian suspect wounded by an American police officer. Under the old regime the suspect would have been allowed to die with no questions asked. Treating him on the spot was a practical application of democratic values. The jails were another matter entirely. They were medieval and presented us with a problem. After insisting on the humane, professional treatment of suspects, we would have to turn them over to prisons that were overcrowded, unsanitary, and dysfunctional. We had to deal with many issues like making sure that the prisoners were fed. We also investigated reports that people were held without seeing judges or that those who were incarcerated prior to our arrival had no record of why they were being held and for how long. With these issues, the problem of Haiti's corrupt judiciary surfaced. This became the focus of a long investigation. We quickly learned that police monitoring is inevitably linked to prison and judicial reform. A prison cannot be reformed without a drastic change in the judiciary. If a corrupt judiciary is left in place, it will quickly undermine all the hard work that went into reforming the police in the first place. It is an issue that the United States should be prepared to deal with in other emerging democracies. America is still a young nation, but we are the oldest democracy and have a great deal to offer to those that are newly developed, especially when it comes to law enforcement. Most emerging democracies are poor. We, as a wealthy state, should be prepared to help equip and monitor the training. Basic equipment needs, and I will stress basic, not high technology, should be an integral part of training and should not be ignored. This should include, for example, equipment for protecting the police and citizens. We painted the police station white, since the old yellow color was associated with the old regime. Together with the U.S. Army, we took machine guns away from the Haitian police, and we helped them get some restored, working sidearms. Again, this was a practical application of democratic values. Police forces armed with machine guns actively intimidate the public. Police armed with pistols are armed to protect themselves and others from deadly harm. This is an important distinction for police in an emerging democracy. Fortunately, not every emerging democracy is as poor as Haiti, but presumably equipment needs may still be severe. Americans are bringing much more than equipment to the table when it comes to police experience. These are the intangibles of democracy that are far more important than weapons. They quickly become real in the hands of teachers of organization and professionalism. Along with our traditions of organization and professionalism for the police are preservation of the rights of the accused, protection of free speech, and nonpartisan conduct of the police. These are not theoretical issues for the people in emerging democracies. They are very real and practical. The United Sates can be an effective role model by showing emerging democracies how to separate the police from the military, as difficult as that may be. We can show them how to professionally hire and train police, how to safeguard suspects in custody, how to maintain order without breaking up a peaceful demonstration, how to restrict the use of deadly force, or how to protect voters at ballot boxes on election day regardless of who is being elected. American police do all these things very, very well--probably better than just about any other police force. For the most part, they are also done instinctively, which is why members of American law enforcement are first class. They are great teachers when it comes to police issues. President Aristide and Ambassador Gelbard said that the second election will be Haiti's most important. In Haiti, or in any other emerging democracy, how the police conduct themselves on that second election day may be the greatest test of all. What occurs on that day may determine whether there will be a third election. The facilitation and maintenance of order during the peaceful change of the legitimately elected government will be the ultimate test for police in an emerging democracy. American law enforcement should proceed to teach the lessons necessary to get to that point. ----------------------------------- TOWARD DEMOCRATIC POLICING: RETHINKING STRATEGIES OF TRANSFORMATION by Clifford Shearing with the assistance of Jennifer Wood The question of what emerging democracies should be doing to transform their policing is both topical and urgent. This question has given rise to a growing literature on the transformation of policing within countries that are emerging from authoritarian forms of rule. There is remarkable agreement in this body of work as to the nature of the problem and what should be done about it. Whether the topic of analysis is Spain, South Africa, Nigeria, or South Korea,[1] the analysis of the problem and the prescription for reform are much the same. The police in these countries are to be transformed from authoritarian, partisan instruments of government into modern police institutions that are nonpartisan and democratically accountable. I will argue that this conventional wisdom is fundamentally flawed not because it is wrong in what it has to say about the police institutions that exist in authoritarian countries, but because its view of policing and the institutions through which it is accomplished is much too limited. This flaw arises because the conventional wisdom on policing fails to comprehend, or even recognize, the fundamental transformations that have been taking place within policing over the past several decades. As a consequence, it promotes ideas and strategies of transformation that are out of sync with the way in which Western policing is practiced. Our practices have outstripped our theoretical understandings of democracy generally and policing in particular. If we are to offer useful advice and assistance to emerging democracies, we must first get our conceptual house in order, for it is our conceptual frameworks rather than our practices that are driving our policy initiatives and interventions. We must, like Hegel's Owl of Minerva, take a theoretical flight even though our philosophical wings beat above a terrain that has long been fundamentally transformed through our practices and the institutions in and through which they take place. I will begin my presentation with a review of the reigning wisdom on policing that is being used as a basis for providing advice to emerging democracies. I will then turn my attention to an alternative framework which recognizes and grasps the way in which policing, and governance more generally, have been changing within established democracies. Finally I will turn, using work that I have been involved with in South Africa, to the implications of this alternative conception for the transformation of policing. The Conventional Wisdom The conventional wisdom about policing is founded on the assumption that democratic governance is state governance and that what is required of emerging democracies is that they develop state institutions which operate in ways consistent with liberal-democratic principles. Critical among these state institutions is the police, as they are a major repository of governmental coercion. Indeed, as David Bayley has argued, "perhaps no other institution is more central to the success of democratic nation-building than the police."[2] Policy initiatives to transform the police within emerging democracies focus attention on two principal arenas. The first is police operations. Ronald Weitzer's comments on the problems with the South African Police (SAP) that the new government has inherited are illustrative of what is identified as the problem: It is urgently required that the SAP reduce or eliminate its involvement in some security duties and take steps to blunt the abrasive manner in which police handle other problems. It is vital that the authorities put an end to the trigger- happy policing of protests and riots, surveillance of government opponents, the misuse of police power of arrest, undercover hit squads and torture and murders of suspects in custody.[3] Initiatives to transform police operations typically draw attention to the institutional structures within which police in authoritarian countries operate, in particular their military organization, and the occupational culture of the police that guides and shapes police practice. The second arena singled out for attention is the lack of accountability outside the governing elite. Here the advice offered is typically to promote transparency in police operations so that newly emerging democratic governments and courts will have the information they require to exercise control over the police within the framework of liberal democracy. Etannibi Alemika's comment on the transformation of Nigerian policing is illustrative: It is . . . imperative for every society to develop frameworks for the constant monitoring and regulation of the functions, powers, performance and accountability of the police. This need is particularly critical in societies that lack appropriate or developed democratic institutions and safeguards against political authoritarianism and extreme economic inequalities.[4] The intention of both these forms of intervention is the same. Policing, it is argued, needs to become an impartial source of order rather than an instrument of a partisan government. Frederik de Klerk, the last apartheid president, in a speech to senior South African police officers during the period leading up to democratic elections, committed himself to this ideal when he promised that his government would not use them "any longer as instruments to attain political goals."[5] To accomplish this depoliticization of the police, two principal modes of intervention are advanced. First, the police are to be made more directly responsive to the safety requirements of ordinary citizens by developing links to ordinary people that ensure they will be directed by people rather than by governments. This, it is argued, can be accomplished in a variety of ways ranging from enabling the police to react directly to individual citizen requests for service through a 911 dial-a- cop type strategy,[6] to requiring the police to work directly with communities to identify safety risks and then work with them to reduce them.[7] The second strategy for depoliticizing the police involves insulating them from direct political control so as to ensure that they are, in Lord Denning's oft cited words, "answerable to the law and the law alone" rather than to political authorities, so that they may be "not the servant of anyone, save the law itself."[8] Arguments to transform the police in these ways invariably recognize that what is done at the institutional level can be undermined by a police culture that is itself biased, and that indeed the insulation of the police from direct political control can operate to create an autonomous police who use their powers to indulge their institutional interests and prejudices rather than the dictates of the law. Virtually all policy initiatives to transform policing in emerging democracies argue that ways must be found to transform the thinking of ordinary police officers in addition to the structures and policies intended to guide their practices. Underlying this conventional view is the argument that the problems of developing a nonpartisan state police are ones that established Western democracies have wrestled with for decades. While these nations may not have solved all the problems associated with developing such a police, they have made considerable progress. As a result, they are well placed to advise those who are just embarking on this difficult road full of potholes and dead ends ahead and help them negotiate the turns they should be taking. In order to share this experience, Western nations are dispatching hordes of analysts and police officers to emerging democracies throughout the world to offer advice on how democratic policing can be established. At one level this analysis is perfectly fine. It does indeed identify critical issues with respect to state police that need to be addressed and it does make available a shared experience to those who would embark on this path. Furthermore, this is clearly a path that must be negotiated by emerging democracies. They all have state police who will have to be transformed, and the experience of more established democracies will be useful to them if they tackle this task. The problem with this analysis is not that it is wrong but that it is too limited. It has been developed from a partial view of policing and of governance more generally. As a consequence, it is an analysis that serves to identify some but not all of the challenges and possibilities that confront both established and emerging democracies. A Less Conventional' Analysis The conventional wisdom rests not only on a restricted view of policing but more generally on a restricted view of governance. The fundamental premise of this account is that governance is and should be a state monopoly. This premise guides and shapes all else. Thus, within this view a democratic polity is one in which state governance is directed by the will of the people, and democratic policing is policing in which the work of the state police reflects this will. Within this conception, policing is conceived as the aspect of governance that is concerned with providing safety and security. Within modern systems of government this task has been assigned primarily to the police. The conventional analysis accepts these claims and then asks how police can be organized so that they operate in ways that promote safety and security for ordinary people and not simply for a political elite. In the case of developing democracies it asks more specifically how they can move closer to Western nations that are further along this road. This analysis accepts that even established democracies may have some way to go in fully realizing the dream of a democratic police, but it argues nonetheless that as they are farther along this path they do provide a model that less developed nations can and should emulate. Critical to this argument is the assumption that established democracies are confident that this vision of democratic governance, and policing more specifically, is one to which they are committed. Herein lies the nub of the difficulty with the conventional wisdom. The problem is that people within established democracies are no longer confident that the vision of democratic governance on which the conventional wisdom rests is one to which they wish to remain committed. It is not that we no longer believe in liberal- democratic ideals. Rather, we question the liberal- democratic institutions that we have fashioned to give expression to these ideals. We are no longer confident that our liberal-democratic institutions are achieving what we want of them. We are in a period of neoliberal transition in which we are seeking to renew our liberalism by renewing its institutions. At the very core of this rethinking is a renewal of our institutions of governance involving a challenge to the assumption that governance should be a state monopoly and more particularly that it should be driven by the expert knowledge of state professionals. Skepticism of state institutions includes skepticism of the police as the institution that should be providing safety and security. This challenge to our conventional wisdom and to the institutions of liberalism that it takes for granted and defends is taking place most obviously via a widespread polity initiative that argues that institutions of state governance should not be exclusively state based and that they should not depend exclusively on the work and knowledge of experts. Some argue that governance should not simply be the business of professionals but should be everybody's business. People, it is said, should be involved in their own regulation. Peter Drucker says that governance should be taking place through a "social sector" of civil institutions. In arguing for the feasibility of this governmental shift he notes that "almost every other adult" in the United States works at least 3--and often 5--hours a week as a volunteer.[9] This is time and energy that can, and should, be devoted to self-governance. This initiative for a "reinvention of government," [10] which William Eggers and John O'Leary have recently dubbed a "revolution at the roots,"[11] is one that has widespread currency. At the nub of this "revolution" is a questioning of conventional wisdom's premise that democratic governance is governance by the state for the people. In its place the argument being advanced is that for the ideals of democracy to be realized, governance must be reinstitutionalized in ways that will ensure that governing is done more directly by people. Two consequences of this argument are being realized, one more radical than the other. The less radical version is a new dream of democracy that seeks to make government "smaller, better, and closer to home."[12] This argument has been articulated by Eggers and O'Leary in relation to policing. They argue that we will not have realized the ideals of liberal democracy if we continue to think of government and policing as being a state monopoly. "Waiting for governments to make it all better," they argue, "is a losing strategy. People have to become more involved in ensuring their own security."[13] In expanding on this argument, these authors are careful to point out that they are not advocating vigilantism. What they propose is what Jane Jacobs has described as "an intricate, almost unconscious, network of voluntary controls and standards established and enforced by the people themselves."[14] The language of this rethinking of the institutions of liberal-democratic governance is one of interagency cooperation, local initiative, and public-private "partnerships."[15] What is maintained is that the work of governing should be devolved to citizens through a process of "responsibilization."[16] In this less radical version, devolution is designed to shift control over governance away from the state; government is not seen as "taking a back seat."[17] In essence, what is envisaged is a shift in the rowing of government but not the steering.[18] This intention is nicely captured by Nikolas Rose and Peter Miller when they speak of neoliberal governance as "rule at a distance."[19] Within the policing arena, the most obvious evidence of this partial devolution is found in community policing initiatives that redefine the police as brokers of community resources that mobilize and coordinate. In arguing for this form of devolution, Eggers and O'Leary note: There is a great deal that government can and should do to improve public safety, but first it must recognize that it needs help. Restoring public safety demands a renewed partnership between the police and the community. Police must reacquaint themselves with the people in the communities they serve, and communities must recognize that the brunt of the task of policing a free society does not lie with the police but with citizens themselves.[20] In addition to this form of devolution there is a second form happening without any policy fanfare. This "quieter revolution" is older and more radical in that it involves a devolution not only of the rowing but much of the steering of governance as well. Within the policing arena the most obvious evidence of this development is the "rebirth of private policing."[21] Private policing is associated with the growth of what I think of as corporate governments that govern contractual communities. Literally throughout the world, corporate governments are doing many of the things that we think of as the preserve of state governments including, and indeed in particular, the provision of safety and security. Everywhere one looks one finds evidence of new governmental territories that have been called "mass private property" being governed by "private governments."[22] Examples of these territories include the gated communities found throughout North America and in many other parts of the world, recreational spaces such as "Club Meds," and what I like to think of as the "industrial Club Meds." These latter territories are often huge spaces that one finds in countries like Zimbabwe, in which tens of thousands of people live and work under the rule of corporate entities that are reminiscent of the great 17th- and 18th-century trading companies such as the English and Dutch East India Companies and the Hudson Bay Company. In addition to these "real" territories of governance there are a variety of virtual territories governed by corporate governments, such as the corporate entities that govern financial markets. This corporate regulation not only predates the neoliberal "revolution at the roots," but the shift in the locus of rule is, as I have already suggested, much more radical than the "rule at a distance" forms of governance that are being argued for by neoconservatives. In the case of corporate governance, the role of the state is not one of governing at a distance through the private sector. Rather, the state provides a framework for the regulation of multiple sites of governance. Here the state's role is less one of a player and more one of a referee to ensure that the various private governments are not trampling on individual liberties. Within this arrangement, sovereignty shifts from the state to private entities, and democratic control shifts from the vote to the market. These communities of governance are, in Drucker's words, "communities of choice not fate,"[23] in which democratic control is exercised through consumer choice rather than through the ballot box, which allows, as he notes, "citizens to vote once every few years and to pay taxes all the time."[24] This displacement of sovereignty is leading to the development of new forms of governance that have elsewhere been referred to as a "new feudalism."[25] Implications for Emerging Democracies Emerging democracies have not been immune from these developments. They too are seeing the emergence of corporate governments within their territories and are being exposed to the neoliberal move to revolutionize liberal democracy through a reinvention of its governing institutions. If we are to speak to emerging democracies about the path that lies ahead of them in a voice that they find convincing, we will have to shift into a key that is not founded on the premises of the conventional wisdom. We are going to have to talk to them about the emerging liberal polity with its network of governing institutions and not simply of a state that pretends that it can and should monopolize governance. We are going to have to talk to them in a voice which recognizes that the Enlightenment dream that grounds the conventional wisdom has been discredited and that a new dream and a new quest to construct institutions realizing it is emerging. Only if we can do this will we speak in a voice that addresses their concerns and one that addresses the foreign policy concerns of established nations that are seeking to operate in a global environment where the old certainty of a stable nation-state system is being rapidly eroded. Private government is a global phenomenon that reflects the emergence of mass private property, contractual communities, and the "commodification" of governmental goods on a global scale. To speak to the people of emerging democracies in a voice that does not recognize this can only lead to failure both from the point of view of these new democracies and from the point of view of the West. The conventional wisdom cannot provide the basis for a sensible foreign policy for any established democracy if it directs attention away from the very loci of sovereignty and governance that should be