Saturday, August 2, 2003

POLICE MISCONDUCT would seem to have a fairly simple remedy: punish the policeman who did it. Instead, we seem to have two standard remedies: 1. Let the victim sue the government and get money compensation, and 2. Let the victim go free if he committed a crime. I'll come back to those in a minute, since even if you like those remedies, surely you would add remedy 3: fire the policeman, and remedy 4: put the policeman in jail. (Of course, 3 and 4 would, like 1 and 2, have degrees of severity-- sometimes the policeman would just be suspended for a week and sometimes he would just be fined or put on probation instead of jailed.)

But it seems (3) and (4) are rarely used. ABC News reports something shocking from Illinois (I tip my hat to Anton Sherwood's Ogre web-log on this):

The legislation signed Tuesday would allow judges to rule out the death penalty in cases that rest largely on a single eyewitness or informant, allow the state Supreme Court to overturn death sentences it deems " fundamentally unjust, " guarantee that defendants get copies of all evidence favorable to them and require juries to consider more mitigating factors before imposing the penalty.


Blagojevich vetoed a section that would allow a police officer to lose his badge if a review board found he had committed perjury in a homicide case. The bill's main sponsor promised to seek a legislative override of the governor's veto.

That section of the bill caused problems for the governor late last week and was the reason he delayed signing it.

Of course he should lose his badge--- and not just in homicide cases. The only reason I can think of why he should not is if the review boards are routinely crooked, and even then he would be able to sue in regular court as an appeal from the review board. And I wouldn't mind making it a criminal offense, with plenty of prison time, for a review board member to vote to fire an officer when the member knew he wasn't really at fault.

Blagojevich must be pandering to the police union with his veto. The only question is whether he was doing this to divert attention from his okaying the rest of what seems to be an attempt to gut the death penalty law in Illinois by allowing anti-death-penalty judges to commute death-penalty sentences in any or every case at their whim. Note that the governor already has this power, and in Illinois has exercised it a lot. But the governor has to bear political heat when he is soft on crime, unlike judges (unless the judges are subject to serious re-elections), and so pro-criminal governors would like to divert responsibility to the judges.

Coming back to the more general question, though: what should be the public response to police misconduct? I can't see why it shouldn't be to punish the policeman instead of the public. I have a forthcoming article on principal-agent law, and while that paper is on contracts rather than torts, I've come to know some of the doctrines of tort law. The basic rule is that if the employee injures some third party in the course of his job while he was trying to do his employer's work, even if he was doing it negligently and incompetently, then the third party can only sue the employer, not the employee. The rationale is that the employee still has incentive to exercise care, because the employer can fire him for the misconduct, and can be careful about who he hires in the first place.

The analogy here is that if the police, say, wreck my car by accident during a high- speed pursuit of someone else, then I should be able to sue the state of Indiana but not the individual policeman. And if the state decides the policeman should have known better, the state can and should fire him, reassign him to desk jobs, or whatever is appropriate.

Similarly, if a policeman searches my house without a warrant by accident, because he is too ill-trained to know that search requires a warrant, then I should be able to sue the state for damages--- for the cost of cleaning, and perhaps for violation of privacy (I won't get into the problem of how many dollars that is worth here). That will give the state incentive to train the police better in the future.

It does not make sense, though to rule that the evidence thus collected illegally should not be used in court. Injustice is done if I am acquitted but I was really guilt. If you believe that my damages from illegal search should include the cost to me of going to jail for the crime of which I am guilty, then add that sum of money to my illegal-search damages--- but still send me to jail. I wouldn't add that sum to damages, though.

Instead, though, we do throw away evidence that was illegally collected. That is a remedy that is useless to someone whose house was searched who was innocent of any crime, since the evidence wouldn't be useful against them anyway. Rather, our current policy is to only compensate guilty criminals, and, by putting the the compensation in the form of evidence suppression, to compensate them precisely to the extent that they deserve punishment. The compensation has no relation whatsoever to the degree to which the search was illegal.

What if the police misconduct is deliberate and knowing? Now suppose the policeman knows the search is illegal, but he kicks down the door and messes up my house anyway.

My impression (though possibly I'm wrong) is that the law treats this exactly the same as unintentional illegality. If I am a criminal, then the courts can't use the evidence illegally collected. If I'm innocent, then maybe I can sue the State of Indiana. But the policeman will not go to jail and probably won't even lose his job, though the search will be a black mark on his record (unless City Hall doesn't like me and the court damages are not very high, in which case it will be a gold star).

What should happen is that in a case like this, I should be able to sue the policeman, and perhaps the State of Indiana if he can't pay, and the policeman should be criminally liable at least to the same extent as a private person who behaved the same way. (In fact, there should be a special law adding extra penalties for policemen who break and enter, above and beyond what burglars usually get.)

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