Whenever there is misconduct revealed in a justice system disaster—an assistant district attorney hides evidence, a cop lies in a report, or a forensic technician “dry labs” a test—reformers are transfixed like jack-lit deer by the chance to discipline or prosecute.
The punishment of individuals becomes the center of gravity in discussions of repairing the system.
Catch more of them, and punish more of them; punish those more harshly, and you will have the answer. Accountability means punishment; punishment will mean deterrence.
Our confidence in this approach is a little strange. After all, many reformers spend their days processing an endless parade of defendants who were arrested and charged because they were not deterred despite the threat of punishment.
But you can see the pull of the punishment solution operating even in Joseph Goldstein’s diligent exploration of “The Stubborn Problem of ‘Testilying’” in three carefully reported articles in The New York Times.
Goldstein identifies 25 specific cases of police lying that, he contends, “reveal an entrenched problem several decades in the making that shows little sign of fading.”
Some of Goldstein’s sources describe the absence of punishment as the cause of the police lying problem. Others see the increased likelihood of punishment (enhanced by ubiquitous body-camera and surveillance videos) as the solution to the problem.
But what if we widened the lens a little, and thought about “testilying” not just as a moral transgression (it is certainly that) that is often (when done under oath) a crime, but also as an unsafe practice?
What if we saw “testilying” not as an exotic artifact of the unique secret world of policing, but as one of the characteristic responses of normal people, doing normal work, in normal organizations, and reacting to acute pressure to produce?
There is no doubt that police lying creates dangers. Goldstein, for example, describes in detail one episode that would have convicted an innocent woman and let the actual criminals go free.
He reports other lies aimed at shielding unconstitutional searches and seizures from review by judges that are dangerous in another way. Those lies are “unsafe” because they undermine the public’s trust in the law and in the people who enforce the law, especially when they are seen in combination with an endemic failure to act against the liars when they are exposed.
(There’s some pretty robust social science showing that for ordinary citizens, trust in the law and its officers—more than fear of punishment—is what leads to law abiding behavior.)
The first thing that the safety perspective would teach us is that you can’t quarantine the toxin of “testilying” within the policing silo.
It might be enjoyable for prosecutors, defenders and journalists to preach from our ethical heights about police misconduct, but “testilying” is a system problem. If you want to attack it, you have to go not just “down and in” to deplore the character of individual liars, but also “up and out” to understand the forces that are acting on them.
Safety experts would say that a cop’s decision to lie doesn’t reflect an inbred delight in lying: it’s an attempt to make sense of the conflicting goals and demands that batter workers at the sharp end of any system.
Like the workers who painted over defects in the insulating foam on the fuel tanks of the space shuttle Columbia to present a nice smooth surface, *cops who bend their narratives are making a “locally rational” even if morally distasteful decision.
They zig when they should have zagged for reasons they think make sense.
Testi-liars aren’t shouting in defiance of the rules. They are covertly trying to tailor their work to the demands they feel. A cop’s lie is a “workaround,” and the decision to lie is the conclusion of an exercise in “sense-making.”
They are doing what they think is expected: evading inconvenient requirements to get on with what they have come to see as the “real” job.
The system’s other players shaped the demands that the cops are juggling.
It is easy to see how the “upstream” work of dishonest cops impacts the “downstream” work of prosecutors, defenders, and courts.
But the safety lens helps us to see that the ramshackle downstream inspection apparatus and the pressures on its operators also impact the upstream environment of the cops.
It is true, as Goldstein notes, that since hardly any case goes to trial, it is unlikely that an upstream lie will be exposed by cross-examination, and that fact reduces the risks of lying for police. (Goldstein’s own solutions to the problems include more suppression hearings and more transparency about credibility findings at those hearings.)
But it is also true that the downstream actors need the guilty pleas to meet their own production pressures.
Pleas aren’t frequent because they facilitate lying. Pleas are frequent because they clear overwhelmed dockets and maintain downstream system outputs.
Guilty pleas can promote lies, but lies can promote guilty pleas, especially when grudging local discovery rules and the caseloads of underfunded defender agencies make pretrial exposures of the lies practically impossible. These influences are circular—not linear and unidirectional.
For safety practitioners the statement “They lie because they can get away with it” just raises the question “Why did they want to lie in the first place?” Evading the Fourth Amendment’s search and seizure rules isn’t an end in itself.
What is the incentive for that evasion? Who creates it? Why?
What we confront here is not one big institutional policy decision to start lying.
As Goldstein points out, the problem has been “decades in the making.” Many cops never lie. No one lies all the time, but we have seen a long series of individual decisions to cut corners and bend the truth that slowly became, not admired, but “normal.”
We expect novices to follow the rules, but we also expect our expert veterans to avoid rule-bound paralysis, to be able to innovate and improvise, to fill in the spaces between the rules. The work as it is written down in the manuals and the work as it is actually performed are never exactly the same thing.
As policing scholar Egon Bittner pointed out years ago, “legality” and “workmanship” are two different standards, and police culture is attuned to the latter.
The process of drift under pressure, one small decision at a time, having been set in motion where truthfulness is concerned, the criteria of legality and workmanship have landed pretty far apart.
Most departments plainly state that untruthfulness in a cop is a fireable offense. That’s the rule.
But maybe it shouldn’t be surprising that the people operating the police disciplinary system, because they know that lying has become “normal” (and probably know that their organizations have been complicit in the “normalization of deviance”), see it as disproportionate to ruin the career of someone who—maybe just this once—stepped over the line.
The conduct rule for cops (“Don’t lie”) and the tacit disciplinary decision rule for departments (“Don’t fire for normal behavior”) have landed pretty far apart too.
No system can survive without disciplining its conscious rule-breakers. Perjury is a crime—a red line—and it has to be prosecuted.
Cops who break the rules should be disciplined. (For that matter, so should prosecutors who lie by omission when they hide exculpatory evidence.)
But we ought to recognize that this is a complex problem that took a long time to develop. By now we need a culture change. There’s no quick fix available.
The ferocity of the discipline is not its most important quality.
As police leaders such as Darrel Stephens have suggested, the real question about discipline is whether anyone learns anything from it. For learning to happen we need to commit to a disciplinary system that is steady, consistent, and proportionate.
We need a system that treats first offenders differently from habitual liars, that encourages peer intervention instead of driving reports of violations underground with threats from On High, and that shows the public we care about the truth.
We might start by avoiding teaching the wrong lesson by promoting cops we know have lied. We could ask whether we are motivating lying because we do discipline for technical legal errors and missed quotas.
We might make it clear that a detective has already done part of his “real” job when he gets an illegal gun or a bag of drugs off the street, whether or not he gets the gun or drugs into evidence. (That seizure may not be a home run; it is a slip we can live with. But don’t do it again.) We can show that workmanship requires compliance with the Fourth Amendment that will get the items into evidence next time, while protecting citizen’s right.
Yes, we can discipline liars. But we should also dry up the market for lies, and the pressures that market exerts.
The safety of the communities will be enhanced. And so will the safety of officers.
Usually we react to revelations such as those in the Times’ “testilying” articles with the British Navy’s solution that Voltaire ridiculed in “Candide”:
In this country it is good from time to time to kill an admiral to encourage the others.
Ultimately, however sanctified it may make us feel, subjecting an occasional cop to a disciplinary lightning strike while we make the rest of them calculate that unlikely possibility on the street won’t promote the respect for the law we need.
Spasmodic discipline corrodes respect for the rules inside the police world. If we want cops to behave in a measured, honest fashion on the street, we’ll need to find a way to treat them that way too.
And the rest of the system will need to find a way to live without lies.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
1 Comment
As you rightly point out, the problem is systemic. What we need is not to assess police performance by the number of cases they clear, get convicted, or prevent from happening altogether, as these are not really in their hands.