COMPARE THE fate of two cops, Derek Chauvin and Daniel Pantaleo. Both asphyxiated unarmed black men. Both killings-of George Floyd last month and Eric Garner in 2014, respectively-were caught on video and ignited bitter protests. Both officers’ conduct had been the subject of more than a dozen previous complaints. But there the similarities end. Mr Chauvin, promptly sacked, faces murder charges in a Minnesota jail. Mr Pantaleo was never charged with a crime and kept his job for five more years, only to be fired last year.
Mr Chauvin had at least 17 prior misconduct complaints-a record made public by the Minneapolis Police Department. Expect prosecutors to deploy that information against him at trial. Mr Pantaleo’s case, in contrast, was a black box. A grand jury declined to indict him. The public learned of the 14 prior complaints against him only three years after Garner’s death, thanks to a leak. That is because New York state, where Garner was killed, has zealously guarded police misconduct records from the public.
The two cases illustrate the very different ways that states handle transparency in policing. Minnesota and 11 others make misconduct records publicly available. Many other states release them in limited circumstances, for instance if allegations are substantiated or incur punishment. Until this week New York had the most restrictive policy of any, sealing off all records. On June 9th, the state legislature loosened its policy-part of a package of police reforms prompted by recent protests.
Anyone will be able to request police disciplinary records under the state’s freedom of information law, with exceptions for “technical” infractions. Andrew Cuomo, the governor, says he will sign it. What was once the concern of activists and public defenders had become a rallying-cry at marches across the state. Ariana Grande, a pop diva, tweeted about it.
New York’s reform is overdue. Secrecy makes accountability hard, especially in criminal trials where police serve as witnesses for the prosecution. Whether the cop’s history shows a pattern of doctoring evidence or of using too much force is vital information for the defence-though difficult to gain access to. In secretive states, if defence attorneys are to subpoena a cop’s record successfully, they must show cause. That means they need an inkling of past misconduct, pieced together from previous cases or news reports. “Shooting in the dark”, is how Rachel Moran, a law professor at the University of St. Thomas in Minnesota, describes their difficulty.
Prosecutors are meant to disclose evidence that helps defendants, not least about wayward cops. Often they fail to do so; sometimes they themselves are stymied in getting hold of it. The Manhattan District Attorney’s Office warned in 2018 that such limitations “frustrate our ability” to abandon weak cases and exonerate the innocent. According to the New York Times, officers from the New York Police Department can be shown to have lied while testifying at least 25 times between 2015 and 2018. After a transparency law was enacted in California last year, hundreds of instances of lying and sexual misconduct by cops surfaced.
No data suggest that more transparency actually leads to less misconduct. But by building pressure that is too great to ignore, public scrutiny can make it easier to ensure that the guilty officers suffer repercussions. More intangibly, scrutiny breeds community trust. Many police chiefs told Ms Moran in a survey that they would support open records even if the law did not require it.
Police unions worry about airing unsubstantiated complaints. Yet cops with the most complaints against them are the most likely to act badly. What the unions probably fear most is reputational damage.
Open records are just one step. Other protections for police-the “qualified immunity” principle protecting them from prosecution, and appeals processes that favour sacked officers, to name but two-also impede accountability. Cynthia Conti-Cook, a lawyer who fought unsuccessfully for a sight of Mr Pantaleo’s record, thinks that getting it right away would have forced the NYPD to fire or discipline him then. “The release of information doesn’t stop the brutality from happening,” she says. “It’s not a radical step on its own. But it helps.”¦
