By: Philip K. Howard

Minneapolis policeman Derek Chauvin, arrested last week for the death of George Floyd, should have been removed long ago from policing duties. He had 18 complaints over his 19-year tenure. Only two resulted in discipline, but the union rules protecting police make it almost impossible to hold officers accountable even for extreme misconduct.   

Chauvin has now been indicted for murder, but his apparent killing of George Floyd is seen by many not as an isolated crime but as evidence of systematic police abuse. Minneapolis, like most cities, has a poor record of holding police accountable. Out of 2,600 complaints since 2012, only 12 resulted in an officer being disciplined. The most severe penalty was a suspension for 40 hours.

The fact that three of Chauvin’s colleagues, themselves now indicted, watched as Floyd choked to death is also an indictment of police culture.

The protests and riots show what happens when large segments of the population believe the deck is stacked against them. Distrust of government leads to corrosion of civil society. The opportunistic looting across the country is indefensible, but it’s rationalized by the logic of nihilism: If police won’t follow norms of civilized behavior, then neither will we.

Contracts protect bad cops

Civil rights leaders have called for a national reckoning to end racism in America. But the unaccountability of bad cops is caused by a factor largely unrelated to racism.

The lack of accountability, according to a Reuters report in 2017, is largely dictated by police union contracts. The standard for discipline is basically harder than for a criminal conviction.

An officer in Columbus Ohio was accused of brutally beating a black college student who was sitting on a bench with friends, for the alleged crime of drinking a beer in public. That officer had been the subject of 40 complaints for misconduct, but Reuters found that, like most bad officers, he could not be dismissed. Why? Union contracts require that prior complaints be expunged from the record, in some jurisdictions after a few months, so it is practically impossible to terminate repeat offenders.  

Union leaders argue that the rules simply “make sure that due process is given to the officers.” Something is obviously wrong with this reasoning: Police officers invoke their rights to get away with violating the rights of citizens. Due process is meant to protect against abuses of state power by police and other state agents—not to protect police when they abuse their power.

The clash of rights means that accountability is basically nonexistent. This is not just a problem with police, but throughout government. A 2016 Government Accountability Office report found that more than 99% of federal employees received a “fully successful” rating.

Democracy is supposed to be a mechanism for public accountability, but democracy can’t function if the links in the chain are broken. We elect governors and mayors, but they have no effective control over police, schools or other public institutions.

The organizational flaw here boils down to confusion between liberty and responsibility. Police and other public employees have an affirmative responsibility to serve the public effectively. They must be accountable not by the standards of a criminal trial, but for meeting a much higher standard of public stewardship. It is the job of supervisors to make these judgments.

The confusion was sown by the Supreme Court in the heyday of Vietnam protests, when the court held that public jobs were akin to a property right and could not be removed without due process. Although the court went out of its way to say that the process could be minimal, due process is a slippery slope.

Health of public culture is at risk

Due process puts the burden of proof on the supervisor. Fellow workers describe Chauvin as “tightly wound,” which is not a good character trait for a cop with a loaded gun. But how does his supervisor prove in a legal hearing that he shouldn’t be a cop?

The tendency is to view accountability as a matter of fairness to the particular person, but what’s at stake is the health of our public culture. The harm of no accountability is far greater than a few bad apples.

Here are a few of the destructive effects: 

• Loss of public trust, as seen in the last week, can lead to a breakdown of civil order. 

• No accountability is like Miracle-Gro for bureaucracy. When people can’t be accountable, they find soon themselves wallowing in red tape dictating exactly how to do things. Rules replace norms. Compliance replaces accomplishment.  

• Public service, and especially police work, should be a source of pride and honor, but the absence of accountability leads instead to cynicism and disrespect.  A Volcker Commission report on federal civil service in 2003 found deep resentment at “the protections provided to those poor performers among them who impede their own work and drag down the reputation of all government workers.”

Safeguards against unfair accountability can readily be provided — for example, by giving veto power to a peer committee. But supervisors cannot be put to the proof in a legal proceeding. How do you prove who doesn’t try hard, or lacks good judgment or is too tightly wound?

Accountability is not the only change needed to revive trust in American government. Leaders too must be trustworthy. The institutions they lead must display fidelity to accepted norms — not only avoiding abuses of authority, but generally striving to be fair, truthful and committed to the common good. 

What’s needed is a new social contract with public employees. Instead of a bulletproof sinecure, the core organizing principle must be accountability for the public good.

We will not have public trust without it.

Source: USA Today