Topic: General

Policing the Police

Last week the Supreme Court said that it would be proper to just assume that unlawful police behavior would be dealt with appropriately by the authorities.

Item: One Frank Jude is bringing a civil suit against the City of Milwaukee because of the actions of its police officers.

Jude accompanied some people to the house-warming party of a police officer. After a while, Jude decided to leave. He was then accused of stealing a police officer’s badge and then all hell broke loose. Jude was swarmed by off-duty cops who beat him to a pulp. When Jude’s friends called 911, the on-duty cops arrived and they proceeded to take Jude into custody for resisting arrest.

The charges against Jude were quickly dropped as it became apparent that he was the victim, not the criminal. Now the investigation had to start over and no one in the government was anxious to handle it.

Prosecutors need the cooperation of the police department to do their job–so they look the other way much more often they should when it comes to allegations of police misconduct (it certainly must vary from one jurisdiction to the next). But the Jude beating would be the exception to that rule. The Jude case is known as a “heater,” which means the handling of the incident is going to be scrutinized by the news media.

The incident wasn’t caught on videotape, but the beating was outdoors and there were civilian eyewitnesses who have accounts that contradict those of the off-duty police officers. And this wasn’t just an unprovoked baton blow to the stomach. The beating was severe. This one can’t be ignored. Thus, the district attorney’s office indicted three officers and the police department fired them. A jury later acquitted the officers of criminal conduct. And Jude is now bringing a civil suit against the city.

Let’s anticipate the fact that Jude will be able to negotiate a substantial settlement from the city for his injuries. Some will say “the system worked.” That is, it was tragic event, but the bad apples were fired from the force and prosecuted. The victim brought a civil lawsuit, as is his right, and received a fair settlement. Case closed.

On closer inspection, I think this case shows some severe problems and that the Supreme Court is just wrong to “assume” these problems away.

Here are a few points to note about this incident:

1. Police Actions at the Crime Scene. The police supervisor who arrived on the scene that evening sent the off-duty officers involved in the incident into the same house instead of separating them, as is the standard procedure.

2. The Actions of the Prosecutor. The district attorney had difficulty explaining his policy of waiting a few days before interviewing persons injured by the police while being arrested. Detectives normally want to interview crime victims as soon as possible while their recollection is fresh.

3. The Actions of the Defendants. Though off-duty, the men who beat Jude say they were “acting as police officers” when they used force against him. On this view, they were investigating a theft and Jude was the suspected culprit. Though Jude was unarmed and outnumbered, these cops went into court and thought they could credibly claim that what they did was legal and proper.

4. The Actions of the Police Witnesses.

A. The off-duty cops who were on the scene, but who were not charged, were key witnesses. Although a half-dozen non-police witnesses saw kicking and beating, none of the police witnesses saw that. They were defense witnesses.

B. A few on-duty cops who arrived on the scene testified for the prosecution about what they saw. Because of their cooperation, they told the court of retaliation within the police department. One officer took an early stress-related retirement.

5. Media Exposes Dysfunctional Police Bureaucracy.

A. After the scandal broke, the news media found that one of the cops that was charged had a questionable background. The police department promised to put tougher procedures in place for prospective police recruits.

B. Because one of the officers charged was involved in another controversy, the media asked what procedures were in place to track potentially abusive cops. The police chief responded by saying that she really wanted to have such a system in place.

Some will argue that the exclusionary rule, which was the subject of this week’s Supreme Court ruling, is still a bad idea. After all, the exclusionary rule would not have done a thing for Jude or other victims of police misconduct. One answer is that there is nothing ill-advised about having multiple “checks” upon the police powers of the government. After all, it might be years until another “heater” case comes along in Milwaukee. And what about other jurisdictions around the country? Is it wise to assume that there are only a handful of dysfunctional bureaucracies out there?

Scholar Scalia Cites in Hudson Not So Thrilled to Have Been Cited by Scalia

Actually, “not so thrilled” is putting it mildly.

I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:

There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).

Scalia preceded the Walker cite with this thesis sentence:

Another development over the past half-century that deters civil rights violations is the increasing professionalism of police forces, including a new emphasis on internal discipline.

Walker tells me he learned that Scalia had cited his work, “to my horror.”

Walker adds, “Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away.”

Walker says political leadership, internal procedures, media oversight, and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important as well, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

Walker also says his research focused on conventional policing, not drug policing. The latter, he says, “is a special kind of policing,” and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker’s research for that particular book ended in 1990, sixteen years ago.

Free Speech Safe For Now

Congressional Quarterly reports that the attack on 527 groups has ground to a halt. As you recall, 527s are organizations created by the tax code. They are used to raise and spend money on elections campaigns. 527s have to disclose their contributions, but they are not bound by other aspects of federal campaign finance law, most notably, contribution limits. 527s helped John Kerry a lot in 2004. House Republicans, though having opposed restrictions on campaign finance for years, have been trying to eliminate 527s since the 2004 campaign. Earlier this year, it looked like they might do so.

Now things look better for those of us concerned with free speech. The House remains eager to get rid of 527s (as part of a “lobbying reform” bill), but the Senate will not go along. Why not? Senate Democrats know what’s up, and with the exception of Russ Feingold, might vote against a lobbying bill that eliminates 527s. So that’s 44 votes against the bill. Seven Senate Republicans also told their leader, Sen. Frist:

As Republicans, we strongly believe in freedom, including freedom of expression and association. We campaigned for office on the principles of a limited and constitutional government. As elected officials we took an oath of office to “support this Constitution.” The First Amendment’s dictates are a model of clarity: “Congress shall make no law… abridging the freedom of speech.” Yet the House of Representatives approved a bill (H.R. 513) that proposes new restrictions on speech about politicians and policies to be enforced under the threat of criminal penalties.

The seven Republicans then threatened to support a Democratic filibuster against the lobbying bill. Who knows? Those 7 plus the Democrats might even make up a majority in the Senate?

So partisanship and principle have worked together well to protect freedom of speech. For now.

(The seven Republican senators are: George Allen, Sam Brownback, Tom Coburn, Jim DeMint, Michael Enzi, John Sununu and David Vitter). [pdf]

Nothing Laughable about Student Aid Mess

Over at The Huffington Post, Anya Kamenetz belittles a recent op-ed I had on Fox News about higher education. “Neal McCluskey of the Cato Institute got Fox News.com to print a laughable retort to the Page One USA Today story last week on student debt,” Kamenetz writes. 

Actually, my laughable retort to USA Today’s article was in a letter that the newspaper printed last week. The Fox News piece was more of a laughable response to several higher education myths, though that included assertions like the one in USA Today that student aid is shrinking. Happily, Ms. Kamenetz’s piece offers an opportunity to do a little more hilarious misinformation busting.

First, while agreeing that the figures I cite in my Fox News piece are accurate – aid per-student aid really has been growing, including grant aid that students don’t have to pay back – Kamenetz responds that the maximum Pell Grant hasn’t risen since 2003, as if that somehow shows that my conclusions about overall aid are actually wrong.

Unfortunately, this is the standard response from people who want to see an endless flow of taxpayer dollars poured into students’ pockets. Of course, it makes no sense. It’s like saying that even though per-person steak consumption increased between 1996 and 2006, and people added a whole lot of new items to their diets in addition to steak, more people are starving today than 10 years ago because steak eating recently stagnated.

Having played the Pell Grant gambit, Kamenetz next asserts that on a per-student basis, state support for higher education is at a 25-year low, part of a trend that has led to increasing tuition costs. She cites a report from the State Higher Education Executive Officers to substantiate her claim, a report that does indeed show that in 2005 the average, inflation-adjusted, per-student public expenditure on higher education was $5,825, the smallest amount in 25 years. Of course, she neglects to mention another little tidbit in the report: In 2001, public expenditures per-student actually reached their highest point in 25 years, hitting $7,124!

What intervened between 2001 and 2005? Oh yes, a recession, which reduced tax receipts and forced states to cut spending, a process made more painful by the fact that many states spent wildly on higher education during the boom years. Even the most college-friendly states, apparently, couldn’t keep giving away taxpayer money that they didn’t have.

Finally, Ms. Kamenetz asserts that “what really makes me laugh is the argument that since the federal government is already spending a hell of a lot of money on this problem, that means the problem is not really a problem at all.” She then offers a deal: “let’s shake hands and agree that throwing more taxpayer dollars away is not going to get at the root causes of this mess.”

I agree that more taxpayer dollars won’t fix the college cost problem, but Ms. Kamenetz misses the main point: Not only won’t throwing more taxpayer dollars get at the problem’s root cause, it IS the root cause. As I wrote in my letter to USA Today, “clearly, aid is not shrinking. Indeed, that’s the problem: Like everyone else, colleges want as much money as they can get and will raise their prices if they think someone will pay them. All this aid ensures that someone will.”

It’s really fairly simple: As long as government is willing to increase student aid, colleges will inflate their prices to capture it. Moreover, as long as states continue to subsidize public postsecondary institutions with taxpayer dollars, we will see public colleges and universities waste massive amounts of money. Finally, as long as those subsidies continue, we will keep seeing tuition at public colleges and universities buffeted by the boom-and-bust cycle that governs most state budgets.

Frankly, there’s nothing laughable about any of the consequences of funneling more and more taxpayer dollars into the ivory tower, whether in the form of student aid or state subsidies. Hopefully, students and their advocates will soon come to realize that, end their constant demands for free higher education, and stop snickering about what they’re doing to taxpayers.

HSA Realism

John Hood has a column today on Health Savings Accounts that cites Michael Cannon’s recent paper on the topic.  As Hood notes,

You can learn more about some of the issues involved – fairness to the health and sick, tax benefits for the wealthy and poor, adverse selection and the stability of health-insurance pools – by reading an excellent paper out last month from the Cato Institute. Michael Cannon, director of health policy studies at the libertarian think tank, has produced one of the better policy studies I’ve read on any subject in a long time. It takes the concerns of critics seriously – studying carefully and then rejecting some, studying and agreeing with others, and proposing changes that will make consumer-driven health care make more sense for more Americans over time.

Health Savings Accounts are one of the most important health care innovations of recent history, with the potential to significantly increase consumer involvement in health care decision-making.  But they are not a silver bullet.   The Left has long had a “utopian complex,” believing that some simple legislative change can solve this or that complex problem.  Lately, too many conservatives have fallen in to that trap as well.  Cannon’s paper is an important contribution to the debate that should be read by both supporters and opponents of consumer-driven health care reform.

Updating “An Unnecessary, Expensive, and Probably Unconstitutional Board”

Last week, I wrote about the Public Company Accounting Oversight Board (PCAOB). Here’s an update:

Last week, the Securities and Exchange Commission appointed an obscure member of the Federal Reserve Board as chairman of the PCAOB, increasing his annual salary from $165,200 with the Fed to $615,000. 

Again, Congress ought to use this occasion to question the purpose and structure of one of its recent creations.