POLICING IN CENTRAL AND EASTERN EUROPE: Comparing Firsthand Knowledge with Experience from the West,
© 1996 College of Police and Security Studies, Slovenia


TRANSPARENCY AND THE POLICE: EXTERNAL RESEARCH, POLICING AND DEMOCRACY

William F. McDonald
Sergei Paromchik

Research studies using methods which include direct observation of police operations and analysis of police records by researchers from outside the police and the government has played a critical role in improving the quality of police work and increasing police accountability and commitment to the rule of law in the West. In the United States studies by scholars, bar associations as well as government inquiries have opened the practices of the police to public scrutiny and have served as important checks on police power. In Central and Eastern Europe, such studies are still rather a novel concept. But in today's world of increasing international police cooperation across borders, there is even greater reasons for cooperating nations to open their police operations to research by outsiders. This paper provides a brief history of the American experience regarding research on the police and provides a few examples. It argues that police openness to external research is a necessary component of the future of policing in the global village.

1 THE NEW TRANSPARENCY: THE VIDEO CAMERA

In a speech last June announcing a new, special police force intended to protect illegal immigrants in southern Mexico, the President of Mexico, Ernesto Zedillo Ponce de Leon, made the following statement:

"A nightmare I've had is that one day they will make us a video...of what happens when some of our Central American brothers are intercepted by Mexican authorities (McMahon 1996)."

His reference was a clever double allusion to police brutality in Mexico and the United States. The first reference was to the predatory behavior of some Mexican police officials in the south of Mexico. They had been robbing and otherwise victimizing immigrants traveling through Mexico from Central America to the United States. The new Mexican elite police unit, Grupo Beta Sur, was established to protect these immigrants from the brutal and corrupt behavior of the old police agencies.1

President Zedillo's second allusion was to an incident in southern California in April. It involved two American Sheriff's deputies beating some Mexican illegal immigrants whom they had chased at high speeds for over an hour on an 80 mile journey north from the Mexican border (Claiborne & Wexler 1996).2 The incident was videotaped by local television news crews who patrol the skies in helicopters and broadcast to the world.

The Mexican government regularly protests against the treatment of its citizens by U.S. authorities and had protested this incident (Claiborne & Wexler 1996; Moore 1996b). Obviously President Zedillo's other fear was that Mexico's moral authority to chastise the United States would be compromised by a video of Mexican brutality. In August, President Zedillo's nightmare came true but in a much worst form than he ever imagined.

On September 5 Mexicans were shocked by what they saw on their national television networks. A brutally beaten man was tied to a tree in the square of the Mexican village of Playa Vicente in the State of Veracruz. A second man poured gasoline over the captive's body, tossed a match and watched as flames engulfed the screaming victim. A crowd of villagers watched as the burning man twisted and wreathed in pain and terror (Moore 1996a, A1).

This was just the latest in a rash of cases within a few weeks in which people in towns across Mexico, disgusted with police corruption and ineptitude, had taken the law into their own hands. But, the burning at Playa Vicente was filmed on a home video camera and the tape sent to the television networks. There was also a petition reportedly signed by town leaders calling for the execution shown on the tape. The petition read:

"This town is fed up with injustice and has no confidence in the judicial system. That is why this town is taking justice into its own hands" (Id.)

In today's world of video cameras and global news networks, more and more spheres of social and political life are being laid open to public scrutiny. Michel Foucault (1979) was certainly very prescient when he coined the clever metaphor for social control in modern society, namely the all-seeing eye of the central guard tower of Jeremy Bentham's Panopticon prison. The all-seeing eye has assumed new proportions with the advent of the video camera.

But what Foucault fails to mention is that the penetrating gaze of modern life extends not only into the private realm of the individual citizen but also into the low visibility spheres of official behavior. The state stares out at the citizens; but the citizens are staring back.

The incident in southern California is one of an growing number of encounters between American police and citizens which have shown up on national and international television. No doubt the most famous of them all is the Los Angeles police beating of Rodney King. But, there have been others. One involved a highway patrolman driving an unmarked car that was equipped with a video camera whose intended use was to document how the suspect behaved during the arrest, particularly useful in drunk driving arrests and resisting arrests. However, it caught a police officer who dragged a woman out of her car and roughed her up after a long chase during which she refused to pull over.3

This new visibility of police actions is a healthy development for democracies. It is undoubtedly going to move the police closer to the ideal of a lawful, humane and respectful police. At the same time it is highlighting areas of police work which are in need of greater training, such as self-control after high-speed chases.

2 THE OLD TRANSPARENCY: EMPIRICAL RESEARCH AND THE TRADITION OF SELF GOVERNMENT

Before there were video cameras, the actions of police and criminal justice officials in the United States were made transparent by another means, namely, systematic empirical research. The studies were often done by people who were not members of the government and not funded with government money. They were just concerned citizens and civic reformers of various kinds. Their initiatives grew out of the well-established tradition of local government and citizen participation in government that has been an fundamental feature of the American experience since the earliest days of the colonies.

Americans never really liked government or trusted it. The republican ideals of self- reliance, self-sufficiency and individualism have always held a special place in the pantheon of American cultural values. They have been glorified by such cultural icons like Ralph Waldo Emerson in his essay on "Self Reliance" and by Henry David Thoreau in his classic, Walden Pond. They motivated Thomas Jefferson to buy the "Louisiana Purchase" from France which doubled the land mass of the United States. He did it to be sure there would be enough land that most citizens could live as independent, self-reliant farmers.

Government, of course, was a necessity. But it could be rendered less threatening if it were done by citizens acting as 'statesmen' out of a civic obligation to promote the commonweal rather than by aloof, unresponsive bureaucrats taking directions from some distant central authority who could easily become a tyrant. However, as the scale and complexity of modern life increased, the old ideal gave way; but not entirely. Citizens continued to keep a keen eye on government in various ways. Empirical studies were one of those ways.

Empirical research as a force in making government more democratic has evolved and been institutionalized over the years. It has moved from simple fact-finding investigations on the part of civic-minded individuals or sometimes partisan legislative committees to sophisticated research employing rigorous experimental designs with random assignment of treatment variables.

Today the federal government spends millions of dollars each year sponsoring research on numerous aspects of crime and the administration of justice. The National Institute of Justice, which is one of the research units within the U.S. Department of Justice, has just celebrated its 25th anniversary of funding and shaping such studies (U.S. Department of Justice. National Institute of Justice 1994). Its achievements are truly impressive.4 Many of its studies subjected long-held assumptions in policing to careful testing and found them unsupported by the data. Those findings led to changes in policing strategies.

Preventive Patrol

One of the first and best known of these studies with a rigorous experimental design, was the Kansas City (Missouri) Preventive Patrol Experiment, conducted by the Police Foundation, a private research organization established over 25 years ago by the Ford Foundation and supported subsequently by research grants as well as sales of reports and some contributions from private sources.

The Kansas City study examined an assumption that had become conventional wisdom in police work and which was costing police departments a lot of money. The assumption was that police should spend their patrol time driving around a given area and that by doing so they deterred crime; made citizens feel safer; could respond more quickly to calls about crimes; and increase the chance of arrest by reducing their response time. Based on this assumption police departments had been increasing the number of officers and cars and the sophistication of their communications systems all of which placed considerable strain on their budgets.

In the experiment, the researchers randomly assigned neighborhoods to three different patrolling techniques: (1) no preventive patrol (police cars entered the area only to answer specific calls); (2) normal preventive patrol as formerly done; (3) increased preventive patrol (cars cruised the streets two to three times more frequently than usual). The study found that neither crime rates nor citizens' perception of their safety were significantly affected by changes in these levels of preventive patrol (Kelling, et al. 1974).

Another study also conducted by the Police Foundation found that police response time was unrelated to the probability of making an arrest or locating a witness; and that neither dispatch nor travel times were strongly related to citizen satisfaction. But, the time element that did prove important was the length of time it takes a citizen to report a crime to the police. If a victim or witness waited an hour or longer before calling the police, the speed with which the police responded was likely to be unimportant (Pate, et al. 1976).

Domestic Assault

Another area in which research studies using sophisticated designs have had an major impact is the matter of the police response to domestic assaults, wife battering. Prior to the 1970's this was one of those low-visibility, no-win issues that the police and local criminal justice systems dealt with by local ad hoc policies arrived at mostly by default. In every town across the country the police were routinely called upon to deal with domestic assaults. For a variety of reasons their responses usually left the victim no better off after the police response than before.

In many jurisdictions the law did not permit the police to arrest the batterer because the crime (often a non-felonious assault) was a misdemeanor. Police were not permitted by law to arrest without a warrant from a judge in cases of misdemeanors that they had not witnessed. The police would often just try to restore order and leave, telling the victim that if she wanted to have the abuser arrested she would have to go down to the courthouse and swear out a warrant before a judge. Usually that meant waiting from Friday night until Monday morning when things had calmed down and motivation to act had dissipated.

Even if there were grounds for arrest, experience had shown that wives and girlfriends usually refused to prosecute their abusers. If the abuser were convicted, sending him to jail was seen as making the situation worse because his income would be lost thereby increasing the family unit's hardship and further aggravating his relationship with the spouse. Thus the conventional wisdom was that there was nothing much that could be done unless the victim/woman was willing to make a major commitment to getting out of the relationship or getting legal protection from the courts.

These de facto polices were also undoubtedly shaped to an extent by male prejudice against women and by old cultural beliefs about the subordination of women and the supposed right of husbands to use violence to control "their women". Such old prejudices were probably what shaped the frame of mind of the Torrington, Connecticut police officers who on June 10, 1983 responded to another call for help from Tracey Thurmon, a young wife in her early twenties, who had been calling them for eight months over beatings from her husband. On this occasion the responding officers stood by and watched while her husband, Burt Thurman stabbed her and minutes later jumped on her neck crippling her and inflicting permanent scars (Froelich 1989).

The Torrington police and police everywhere, however, took notice when Mrs. Thurmon successfully sue them for $2 million. Thurman said police had repeatedly ignored her complaints about death threats from her husband, whom she was in the process of divorcing. Shesued for damages, claiming that the police were (Froelich 1989) violating her constitutional right to equal protection. The jury sided with Thurman, faulting 24 city police officers, 40 percent of the force. It was the first federal award of its kind (Polman 1986).

Since the early 1970s police departments had been put on notice by increasingly vocal feminist movement to rethink their policies for handling such women's issues as domestic assault. But, finding a defensible policy did not become urgent until Thurmon's suit. As a result of the case, Connecticut passed the "Thurman Law" that requires police to treat acts of domestic violence as they would any other assault.

In the early 1970s feminists in New York City had tried to get the police to adopt a policy of mandatory arrest in domestic assault cases. That challenge framed the issue. Was it better to make an arrest or not in such cases? In 1980 the National Institute of Justice funded a study by Professor Lawrence Sherman of the Police Foundation with the cooperation of the Minneapolis Police Department to subject this question to examination using an experimental design.

The experiment systematically varied the police use of three approaches when responding to misdemeanor spousal assault calls: (1) ordering the suspect to leave home for 8 hours; (2) advising the couple to calm down; and (3) arresting the suspect. The study found that "arrest worked best" (Sherman & Berk 1984). A night in jail for the suspect appeared to cut in half the risk of repeat violence against the same victim within the 6-month follow-up period, from 20 percent to 10 percent. The report recommended that the police in all 50 States be allowed to make warrantless arrests in misdemeanor domestic violence cases.

This study got widespread publicity and had immediate effects on police practice. Many police departments changed their policies to require an arrest in domestic violence situations. By 1988, 90 percent of police agencies surveyed either "encouraged" or "required" arrest in such cases; 10 States had enacted laws making spouse assault a separate criminal offense; and half of the States rescinded legislation that prevented police from making an arrest if they did not witness the crime (Sherman, et al. 1992).

This is a rare example of empirical research having such dramatic impact on public policy in the police work. But the story becomes even more interesting because it also illustrates the dangers of public policy makers embracing research results too quickly. Perhaps these results were embraced so quickly because the mandatory arrest policy is what the feminists had been pushing for and because the policy was so simple and universal. It called for no distinctions to be made between situations where the police should arrest and those where they should not. No discretion had to be exercised. So it was politically and legally very tidy.

However, subsequent replications of the study in other cities have shown that the situation is not that simple. As with all research, the findings of any given study must be re-validated under different circumstances in order to confirm the results and to assess their generalizability to other populations and other settings. Minneapolis is certainly not representative of all American cities.

In 1986 the National Institute of Justice funded replications of the experiment in Omaha, Nebraska; Charlotte, North Carolina; Milwaukee, Wisconsin; Metro-Dade, Miami Florida. The replications found that the effect of arrest varied depending upon certain conditions. In some cities arrest had the same positive effect it had had in Minneapolis, reducing the risk of future violence. But in other cities and circumstances, arrest increased the likelihood of future violence. In Milwaukee, arresting unmarried suspects appeared to make them more violent; but, not so for the married suspects. In three cities, arresting unemployed suspects made them more likely to repeat their violence; but not so for the employed suspects (Blumstein & Petersilia 1994).

Looking for the common denominator, Professor Sherman summed up the findings of the various studies as follows:

"Arrest increases domestic violence among people who have nothing to lose, especially the unemployed.

Arrest deters domestic violence in the short run, but escalates violence later on in cities with higher proportions of unemployed black suspects.

A small but chronic portion of all violent couples produce the majority of domestic violence incidents.

Offenders who flee before police arrive are substantially deterred by warrants for their arrest, at least in Omaha" (Sherman, et al. 1992).

Corruption

Before the National Institute of Justice existed, empirical research on the police and the justice system did not involve experimental designs but it did address important subjects like corruption, lawlessness and brutality. The purpose of the earlier studies was to make the police and the justice system visible to the public and thereby bring about reforms. Their methods were interviews, observations and analysis of records. Their reports were often bolstered with elaborate statistical charts and tables, based on their analyses of police, court and prison records. Many of these studies influenced the development of public policy, although in a less direct and dramatic form as the Minneapolis Domestic Assault experiment.

Police corruption has been the object of a long string of investigations and studies. In New York City, for example, almost every generation since the 1890s has had its investigation into police corruption. The State of New York even institutionalized the investigation function by establishing the New York State Crime Commission as a permanent body intended to ferret out official misbehavior.

This long line of investigations can be traced at least to the 1870s when several reform organizations of citizens, such as the Society for the Suppression of Vice, the Society for the Prevention of Cruelty to Children, and the Society for the Prevention of Crime began challenging the Police Department's established way of doing things. They wanted the police to enforce the laws regarding moral behavior and to cease their cozy relationship with saloon keepers, professional gamblers, and proprietors of brothels in which the police extorted money in exchange for allowing vice to flourish (Richardson 1970).

In 1891 the Rev. Charles Parkhurst, the minister of the Madison Square Presbyterian Church, became the president of the Society for the Prevention of Crime. He quickly changed the Society's tactics from demanding that particular dives be closed to breakup the connections between the lawbreakers, the police and the politicians. In February 1892 he used his Sunday sermon to deliver a scathing attack on the Police Department and the Tammany politicians that controlled it.

Police officials responded by demanding that he produce evidence for his allegations. They assumed he had none and they were right; but not for long. He immediately became and empirical researcher, setting out on nocturnal expeditions guided by an experienced informant. He visited various dives and brothels and became convinced that the Police Department was the focal point around which this network of vice revolved.

On March 13 he devoted a second sermon to the New York police and the local municipal administration. He said, "I believe that administration to be essentially corrupt, interiorly rotten, and in all its combined tendency and effect to stand in diametric resistance to all that Christ and a loyally Christian pulpit represent in the world" (Richardson 1970, 237). He then presented his evidence and, in a call to action, asked what the people were going to do about it.

Subsequently a grand jury used his findings as the basis for a presentment (a formal accusatory instrument) attacking the Police Department. The police responded by transferring some of the precinct commanders and the Superintendent of Police retired; but little else changed. Parkhurst kept up his documented attacks and was joined by a newly formed citizens' group called the City Vigilance League. The investigative work was done without compensation by two men over two years. Finally the day of reckoning happened. In the 1893 state elections the Republicans captured control of the legislature and launched a legislative investigation of the New York City Police and the democratic municipal administration that controlled them.

Known as the Lexow Commission, after its chairman, Senator Charles Lexow, the legislative committee brought the dark side of the police into full view. It demonstrated a systematic and pervasive pattern of police corruption, brutality, election fraud, payoffs for appointments and promotions, political interference in transfers and assignments, police involvement in confidence frauds, and the police belief that they were above the law. The tangible consequences of the investigation, however, were not as dramatic as reformers had hoped.

The incumbent political administration was voted out of office; the police commissioners removed a few officers after departmental trials; some officers were convicted of criminal acts but their convictions were later set aside by the courts and they were restored to office with full back pay.

Some structural changes were made. The Police Department was no longer allowed to control its own finances. A special commission was established and empowered to carry out "a radical reorganization of the department" by summarily removing, with the approval of the mayor, "any person and persons connected with said department, who, in their judgment, do not possess the necessary qualifications or answer the requirements of the service...." (Richardson 1970, 242).

Judging from the American experience, police corruption can not be solved once and for all. It is a perennial issue about which government officials, politicians and citizens must be ever vigilant. Most importantly it is people outside the police and the government who represent critical counter forces against corruption.

On April 25, 1970 eighty years after the Lexow Committee and other inquiries into police corruption in New York City, the New York Times published an article charging widespread police corruption in the city and official laxity in dealing with it. The mayor of the city established the Knapp Commission to investigate the charges. The commission was funded by money from government and private sources.5

The Commission concluded that it is a mistake to think of corruption in terms of the so- called "rotten apple theory." Corruption is not the result of a few morally weak individuals whose presence corrupts everyone else. It is the result of structures and the lack of structures that put police officers in situations where the rewards of illicit behavior far outweigh those of lawful behavior and where the motives and mechanisms for identifying and prosecuting improper behavior are weak or non-existent.

The Commission recommended that a completely separate office unconnected with the police or the prosecutor's office be established for the sole purpose of investigating and prosecuting corruption. The office had to be fully independent and designed so as to protect police officers and citizens who chose to report corruption to the authorities and to help with the prosecution. Further, the office must have jurisdiction going beyond the Police Department to include lawyers, prosecutors and judges and geographic jurisdiction that inlcudes all of the five separate counties covered by the City of New York.

"The Commission also made the following recommendations:

Corrupt activity must be curtalied by eliminating as many situation as possible which expose policemen to corruptoion, and by controlling experure where corruption hazards are unavoidable.

Temptations to engage in corrupt activity on the part of the police and the public must be reduced by subjecting both to significant risks of detection, apprehension, conviction and penalities.

Incentives for meritorious police performance must be increased.

Police attitudes toward corruption must continue to change.

A climate of reform must be supported by the public" (Id., 17).

The Commission also noted that because of the nature of policework in New York and everywhere else, the police develop feelings of isolation from the community and hostility. The police develop intense group loyalty which breeds both a powerful aversion to criticism from outsiders and and an intense desire to be proud of the Department. This mixture of hostility and pride had created what the Commission described as "the most serious roadblock to a rational attack upon police corruption, [ namely,] a stubborn refusal at all levels of the Department to acknowledge that a serious problem exists" (New York City. Commission to Investigate Allegations of Police Corruption and the City's Anti-Corruption Procedures 1972, 6).

Police Lawlessness: The Third Degree, the Exclusionary Rule, Stop and Frisk

Another crucial aspect of policework that has been the object of close scrutiny by researchers has been police obedience to the rule of law, particular the law of arrest and related Constitutional law which restricts the power of the police. These restrictions are the key to a free and open society. They are what stand between the citizen and state. They are intended to shield the citizen from interference from the police until and unless certain conditions obtain including a certain level of evidence exists that the citizen is involved in some illegal act. In keeping with the liberal tradition and its anti-authoritarian bias, these restrictions have been designed and enforced in accordance with the belief that it is better to allow 100 guilty men go free than to convict one innocent man.

Following the common law tradition, American police may not search or seize a person unless they have a threshold level of evidence that supports their belief that a crime has been committed and that the person has committed it. That threshold is referred to in legal terms as "probable cause." This is one of those legal terms that can not be precisely defined but nevertheless has a definite meaning although in given cases even supreme court justices may disagree as to whether the evidence rises to the level of probable cause.

At a minimum the requirement of probable cause means that the police may not arbitrarily arrest (seize) or search someone without the slightest shred of evidence. It also means that the police can not lawfully require a suspect to provide evidence against himself. This restriction on self-incrimination is, of course, also protected by the 5th Amendment to the federal constitution.

Restricting the powers of the police to stop, search, question and detain citizens, of course, reduces to some extent their effectiveness as crime fighters. They have to work harder to get evidence. This loss in crime fighting effectiveness is what is known in the liberal tradition as "the price of liberty." Much of the debate that accompanies changes in restrictions on the police revolves around the question as to whether the price of liberty is too high or the danger of police power is too great.

These changes represent a continual rebalancing of the scales between liberty and order. They are testimony to the accuracy of the famous Dr. Samuel Johnson's observation that "the danger of unbounded liberty and the danger of bounding it have produced a problem in the science of government which human understanding seems hitherto unable to solve."

During the 1960s the United States Supreme Court made several attempts to solve this problem. On the one hand, it restricted police authority by imposing on the states the so-called "exclusionary rule" under which evidence obtained by the police in violation of the legal restrictions would be excluded from use at trial and requiring the police to warn suspects of their constitutional rights including the right to remain silent and the right to have an attorney.6 On the other hand, it expanded police authority by allowing the police to stop and conduct a limited search of people known as a "frisk" on the basis of legal grounds that were less than probable cause.7

Preceeding both of these highly controversial policy changes there had been substantial bodies of empirical research that had been done. Those studies had become part of the body of common knowledge about how American police operated and, no doubt, influenced the court's understanding of the nature of the problems.

One of the most thorough studies of police illegality was published in 1931 by the first national crime commission known as the "Wickersham Commission" after Attorney General George Wickerham, its chairman. Even though it was a government sponsored commission, it included outside members and consultants and it did not hesitate to issue severe criticisms. Its report on the police was scathing and uncompromising as the title suggests, Report on Lawlessness in Law Enforcement (U.S. National Commission on Law Observance and Enforcement 1931a).

In 347 blistering pages it described the systemmatic use of the "third degree" by the police to coerce confessions out of suspects, sometimes using force and violence, other times using more subtle psychological weapons. Based on interviews and observeration in 15 cities the Commission found that along with the third degree other violations of law were common including (1) illegal arrests; (2) excessive force at arrest or in jail; (3)illegal detention without production in court; (4) wrongful denial of bail or insistence upon excessive bail; (5) isolation of the prisoner from his family and friends; (6) denial of the opportunity to get counsel or interview counsel; (7) confinement in bad quarters or under bad living conditions.

In its report the Commission went back to first principles of a free society. It wrote:

"Most important of all is the right to personal freedom. It is a fundamental principle of the common law that a citizen may not lawfully be imprisoned by a policeman or any other official merely because the official thinks such action to be for the public good. A policeman...must be able to point to a specific statute or a specific rule of the common law that authorizes him to arrest and detain a citizen under the circumstances of a given case....This is what John Adams meant by 'a government of laws and not of men'. This principle of the rule of law goes back to the words of the Magna Charta" (Id., 32).

In its discussion of police illegality in Los Angeles, California, the Commission reported that it had learned that it was customary practice for the police to manhandle people in custody and to keep them incommunicado often for 72 hours before they were charged or released and that the police believed they had the lawful right to arrest and hold persons on suspicion. They also noted with favor that there existed in Los Angeles one of the most forceful agencies to combat the third degree in the United States, namely a group of private citizens who had formed the Constitutional Rights Committee of the Los Angeles Bar Association.

The Constitutional Rights Committee was not formed in reaction to any particular case of brutality. It grew out of a discussion group known as the Southern California Academy of Criminology, founded by the pioneering former Chief of Police of Los Angeles, August Vollmer and the Dean of the University of Southern California Law School, Justin Miller. That Academy brought together police, social workers, criminologists, juvenile court workers, and lawyers. The official objectives of the Committee were: (1) to abolish physcial injury by third- degree methods; (2)to abolish mental third-degree methods; (3)assure that suspects would be taken promptly before a magistrate; (4) assure that homes would not be searched without a warrant; (5) abolish holding prisoners incommunicado; (6) abolish illegal arrests with warrants (U.S. National Commission on Law Observance and Enforcement 1931a, 145). Over the next thirty years these objectives were slowly incorporated into consitutional limitations imposed on the police by the Supreme Court.

At the same time in the 1960s when the Supreme Court was imposing these restrictions on the police and alledgedly "handcuffing" the police, as the police referred to it, the court expanded police to stop citizens and search them on the basis of less than probable cause. However, the search had to be limited to a pat-down known as a "frisk" of the person's clothing solely for the purpose of protecting the police officer from the possibility of injury if the suspect were carrying a weapon. The frisk could only be done if the police officer could articulate reasonable grounds to believe that the suspect might be armed and involved in a crime. A mere hunch was not enough to justify the frisk.

This policy change was regarded as a dramatic departure from the traditional constitutional standard of probable cause and was roundly condemned in a dissenting opinion by Justice Douglas. But, whether one agrees with the opinion or not, what is noteworthy for our purposes is that the policy had been long debated in the literature and the debates had been informed by empirical studies including some of the findings of the Wickersham Commission.

During the 1920s the country was trying to cope with the lawlessness associated with the 18th Amendment, the National Prohibition of Alcohol. Prohibition and its enforcement was a major stimulus for the consolidation of organized crime groups from Al Capone to other mobsters who ran speakeasies and trafficked in illegal alcohol. Some people felt that the police needed greater authority to cope with the problem and that the probable cause standard for searches should be lower when it came to searches for illicit alcohol. The Wickersham Commssion, whose main reason for existence was to address the law enforcement problems created by Prohibition, disagreed. It wrote:

"The limitations upon search and seizure have undoubtedly hampered investigators and special agents in every connection. But apart from the constitutional questions, too much resentment and irritation is likely to be provoked by changes whcih would give to enforcement of natonal Prohibition greater latitude than is permitted with respect to other laws. We do not think it is adviseable to alter the federal law with respect to search and seizure, assuming it would be possible (U.S. National Commission on Law Observance and Enforcement 1931b, 66)."

Over the next decade, however, public concern shitfed from alcohol to gun control. Several law professors wrestled with that problem of finding the balance between liberty and order. Police illegality started to be seen from a different perspective. They began to argue that part of the problem was that the law of arrest was outdated and the police needed new powers.

Professor John B. Waite (1931) led the attack using empirical data to support his position. He argued that if the police made an unlawful arrest of someone who turned out to be guilt of a crime then the arrest should be made legal retroactively. He was particular concerned about guns and showed that one fourth of the "gun-toters" arrested in Detroit went unpunished because the courts suppressed the evidence due to illegal searches (Waite 1933). (Michigan had its own exclusionary rule at the time.)

Other law professors joined in the dialogue, adding facts and arguments of their own (McDonald 1977). The reknown Jerome Hall provided additional documentation of extensive police illegality, but he argued that part of the problem was that the law of arrest did not provide the police with the authority to act in situations in which action was necessary.

So the police were being forced by the inadequacy of the law to act illegally. And this kind of police illegality he did not condemn, although he argued that it had to be remedied because it fostered police illegality of the wrong kind. He wrote: "As between strict adherence to outmoded rules, and practices at odds with such rules, the latter may well be the lesser evil. But, that alternative, as a deliberate policy, cannot in a society constructed upon law, be a permanent one..." (1936, 366).

When it came to the problem of authority for the police to stop and search people who they thought were carrying guns but for which they did not have probable cause to conduct a search lawfully, Professor Andrew Bruce thought he had an answer, namely the revitalization of the "doctine of the night prowler." The doctrine can be traced back to the Ordinance of 1233 in England which established the "night watchman," long forerunners of the modern police. The ordinance directed the watchmen to "arrest those who enter ville at night and go about armed" (Bruce & Rosmarin 1933-1934).

Bruce showed that the common law courts had recognized that authority for watchmen to detain suspicious "night walkers" at least until the morning without probable cause. He argued it should be allowed for modern police in order to cope with the gun carrying problem.

In the 1940s the Interstate Commission on Crime was established by the American Bar Association to develop model legislation that could be copied by the states when and if they chose to reform their laws. The Commission eventually wrote the Uniform Arrest Act which was intended to respond to these concerns about the outmoded nature of the law as well as differences among the states in their arrest law.

But before drafting any model legislation they asked Professor Sam Warner to conduct a first-hand empirical study of police arrest practices "in order to determine the possibility of drafting a model act to reconcile the law as written with the law in action" (McDonald 1977, 54). The Commission was of the opinion that "in nearly all, and probably in all, American cities the police regularly violated the law in making arrests", and they guessed that "over 75% of all arrest are ilegal in some particular." But they "wondered if this was not necessarily so, because strict compliance with the law would hamstring the police in their efforts to protect society" (Warner 1940; Warner 1942).

Warner's own study confirmed the belief that many arrests were illegal in some particular, but he and the Commssioners concluded that the law of arrest was indeed part of the problem and that adjustments needed to be made. By the 1960s the state of New York passed as law allowing the police to stop and frisk suspicious people under certain circumstances. Shortly thereafter the U.S. Supreme held that stop and frisk was a constittional tactic that the police needed to use in situations where there was no probable cause but society expected the police to at least make some inquiries as to what has happening.

3 CONCLUSION

Empirical research by private citizens from outside the government, and sometimes in cooperation with government spsonsored inquiries, has been a crucially important force in the struggle to achieve a democratic, fair, humane, and lawful police in the United States. Empirical researchers are one very important set of guardians that guard the guardians. States committed to the democratic liberal ideal would do well to learn the simple lesson from the American experience. Achieving a democratic and lawful police force is a never-ending task. A government of checks and balances is not enough. One needs transparency in government. The people must be able to know if the checks and balances are working and if public policies set by the people are indeed being followed or are in need of revision.

Empirical research provides transparency. Therefore, if there is one lesson which I would recommend that Central and Eastern European police agencies and government officials learn from the American experience it is that the liberal-democratic police ideal is more likely to grow and thrive if there is also a robust community of researchers, scholars and citizen activists watching, recording and analyzing the police and making them transparent. And, finally, you should know that the National Institute of Justice (NIJ), of the U.S. Department of Justice, stands ready to assist with the development of such a research tradition.

NOTES

  1. . Grupo Beta Sur is one of several new Mexico elite police units designed to protect migrants from bandits and extortion by corrupt Mexican police. They are modeled the first such unit, known as Grupo Beta, established in 1991 in Tijuana, which proved to be very successful (Golden 1992; Rotella 1992). Two factors in the context of the creation of the Tijuana Grupo Beta are noteworthy.

    A special police unit with the sole purpose of protecting illegal immigrants from bandits was first established by the San Diego Police Department in 1976 (Kolendar 1978). It was disbanded 18 months later after more than a hundred arrests and several shoot-outs and hot pursuits across the international border. One of the reasons for disbanding was political pressure from Mexico, who was embarrassed by the fact that many of the bandits caught robbing the migrants were Tijuana and federal Mexican police officers (Romney 1992; Rotella 1992). The controversial and harrowing work of the unit has been chronicled by Joseph Wambaugh, in his non-fiction book, Lines and Shadows (1991).

    In 1984 the San Diego police established a successor unit to protect the illegal imigrants. It was disbanded in 1989 after shooting 44 suspects, killing 18. This time they were disbanded due to allegations that they were wrongly killing Mexicans. Later the same year, however, the San Diego Police Department re-established yet another unit, its third, to protect the immigrants. That unit still operates today and strikes an observer as very strange because it involves uniformed police officers hiding out at night in the canyons and arroyos along the border and reassuring illegal immigrants whom they meet sneaking into the country that they are there to protect themfrom bandits, not turn them over to La Migra or take them back to Mexico. In the current anti-immigrant atmosphere in the country, especially in California, this unit represents classic and noble example of how one democratic police agency adjusts its resources and priorities to conflicting political demands without losing sight of their more basic obligation to protect human life because the person is a human being, not because he or she is a citizen or a [sic]

    In 1990 the relations between the United States and Mexico began to change as the two governments were pursuing the North American Free Trade Agreement with Canada. Mexican officials were particularly concerned the the public image of Mexican lawlessness could threaten negotiations. Conflicts along the border fed that image especially the series of violent clashes that were happening along the Tijuana-San Diego border. So Mexican officials dissolved its Border Inspection Group because of constant complaints about its corruption and established Grupo Beta. The Beta unit was composed of officers from state, federal and local police units. The officers are paid double the normal salary of Mexican police and they are held to higher standars of integrity (Golden 1992).

  2. Subsequently, an administrative review panel recommended that Deputy Franklin, a 20 year veteran of the police force, be suspended without pay for one month, and Deputy Watson, a five year veteran, who delivered more blows on the tape, was recommended for termination (Associated Press 1996).

  3. . She later explained that she didn't pull over because she did not know the police officer was indeed a police officer. She thought she was being waylaid by an attacker.

  4. Much of that research and other literature is now available free of charge to you and anyone else in the world who has a computer and is linked to the INTERNET and the World Wide Web. You can locate them and in many cases download a copy of them for your personal use. What is more, incredible as it may seem, NIJ's Web site contains software which will translate those studies into Russian, French, German or Spanish (again at no charge).

  5. The City of New York contributed $325,000; the State of New York contributed $75,000; the federal government through the National Institute of Justice contributed $215,037; and an additional $134,000 was contributed by 12 private foundations (New York City. Commission to Investigate Allegations of Police Corruption and the City's Anti-Corruption Procedures 1972).

  6. . Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).

  7. . Terry v. Ohio, 392 U.S. 1 (1968).


Table of Contents | Citizens Oversight of Police: Developments in the West

The HTML conversion of this chapter was supported by the
National Institute of Justice/
National Criminal Justice Reference Service
Washington, D.C.