Doing evil, hating the light

A woman tape-records the efforts of the Internal Affairs Bureau of the Chicago Police Department to discourage her from filing a complaint about having been groped by a police officer. Result: the woman faces serious prison time under the Illinois anti-wiretapping statute. This looks like extremely bad behavior by the Cook County DA’s office.

Making it illegal to tape-record someone without that person’s consent may or may not be a good idea; assume for the moment that it is, especially in light of how easy it is to doctor a tape. But I can’t think of any reason for extending that ban to tape-recording a public official in the performance of official duties. The notion that taping an official – for example, a police officer – ought to be a more serious crime than taping an ordinary citizen has no justification I can think of.

It seems to me that the default rule should be that every interaction between a citizen and an official is recorded, unless the citizen asks for privacy. Managing the archiving-and-deletion process would be a problem, but not an insuperable one; storage is cheap.

Today’s New York Times story about a woman facing serious prison time for recording the attempts of the Internal Affairs Bureau of the Chicago Police Department to discourage her from filing a complaint against an officer who had groped her in the course of investigating a domestic-violence incident is, on its face, appalling. Perhaps there’s a back-story, but I can’t imagine what it is.

What seems to be missing here is prosecutorial discretion. The Cook County District Attorney seems to be acting very badly indeed; of course that office needs to maintain good relations with the police, but not at the expense of justice.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

20 thoughts on “Doing evil, hating the light”

  1. One situation in which a ban may make sense is a police interrogation. Criminals may be able to use such recordings to better prepare for any future interrogations. But then it should be possible to define very clearly what these circumstances are.

    This rationale is, of course, irrelevant to this woman’s case.

  2. I’d say that’s a situation in which the ban makes zero sense. Unless you’re going to assume that, if the police are interrogating people, they must be guilty.

    No, every last interaction with public officials should be recorded. Police especially.

  3. I don’t think that Mark is capable of being disingenuous, but he sometimes can be ingenuous. He doesn’t slip very often, but when he does, it’s a doozy.
    “[O]f course that office needs to maintain good relations with the police”. When the dignity of the cops is concerned, prosecutors are OWNED by the cops. So are judges, even federal judges, even federal appellate judges. See US v. Schwarz, 283 F.3d 76 (2d Cir. 2002) (propounding legally absurd waiver of conflict doctrine, applicable to this case only, because police demanded that one of the Abner Louima cops be acquitted.) The only time I remember a court standing up to affronted police dignity was in Texas, of all places. A fellow named Kenneth Vodochosky gave a friend of his who just got out of jail a gun and some ammo. The friend promptly committed copicide. Since he also committed suicide by cop, the cops needed somebody else to fry. Vodochosky was duly sentenced to death, to please the police. The Texas Court of Criminal Appeals (the highest court in Texas for criminal matters) found that Vodochosky’s actions, although surely criminal, were not capital murder.

  4. “Criminals may be able to use such recordings to better prepare for any future interrogations.”

    That strikes me as improbable. Any criminal sophisticated enough to study recordings of police interrogations is probably also sophisticated enough to refuse to be questioned without a lawyer.

  5. PACE Code E requires police in England and Wales to record interrogations with suspects. I haven’t heard news of their judicial system having broken down in the meantime…

  6. Police officers have a very difficult job, where half the people they talk to are lying to them. Precisely because of that, many states (including Illinois, I believe) have now started recording all interrogations in certain cases. Many police cruisers are now equipped with video cameras that essentially record all traffic stops. The evidence is great protection for the honest — officer, civilian or suspect.

    Prosecuting those who record an encounter with the police, on the other hand … just baffling. But the Legislature passed the law — what was the intent and reasoning?

  7. There should be laws requiring all interrogations be recorded, and laws specifically allowing members of the public to record police officers in performance of their official duties. After all, if you’re not guilty of anything, what are you afraid of? As it happens, too often the video recorders in patrol cars mysteriously “malfunction” at critical times, and there have been instances of recorders in multiple patrol cars malfunctioning simultaneously. How convenient…

    As far as the intent and reasoning behind the Illinois law, I’m sure it was a case of the various FOP’s (and similar organizations for Sheriff’s cops and the State Police) around the state leaning on their representatives and senators to pass it. It’s a rare state legislator who wants to get the reputation of being soft on crime, and going against the cops’ unions would be a great way to get that rep.

    Unfortunately, at least a portion of the police have internalized the belief that they’re the U.S. Army or Marines, and the rest of us are potential Vietcong, Iraqi insurgents, or Taliban until proven otherwise. And the good cops will generally draw the Blue Line tight to protect their own, and the prosecutors, all hoping for promotion to Attorney General based on a “tough on crime” image, will only perform a cursory investigation, and judges, who too often view their role as an arm of the prosecution, will go along. And the average Joe in the burbs figures it only happens to spooks in the hood who probably deserve it.

    I agree that cops in cities have about the toughest job out there. Just this week, a suburban cop here near Detroit was killed in the line of duty, and today four cops were shot in their precinct house in Detroit. We allow cops certain leeway in the performance of their duties, but that doesn’t mean they should be able to get away with anything and everything in the cause of fighting crime.

  8. We don’t hold anyone else in a position of lethal authority accountable, I don’t why we would start with the police.

    Like Bob, I, too, thought of Wikileaks, which establishment critics are sure is endangering someone, somewhere, while blithely ignoring the deadly toll taken by the American policy of perpetual, pointless war. And, I thought of the Long Beach, CA man, shot last month by police, while he toyed innocently with a garden hose, at 4:30 on a Sunday afternoon. I recall the case, a few years ago, in which a policeman wandering around a backyard at a Halloween party, in response to a noise complaint, shot and killed a young man, dressed as a cowboy, through a plateglass window, because the man “appeared” to have a gun; the policeman was not even disciplined. And, of course, there was the case, many years ago, of Dan White, the former San Francisco supervisor, a former policeman, who committed two political assassinations — a capital crime in California — and served five years, after a prosecution starved for resources barely managed to convict White of the least serious serious charge; a police riot followed.

    In recent years, we’ve pretty much eliminated habeas corpus, prohibitions on torture, aggressive war as a war crime, and the statute against frauds, but thank goodness, a policeman in Chicago can record a civilian without permission, but is protected against any mere citizen getting any ideas about having any rights.

  9. Whatever the case for or against official recordings, I see no case at all against civilians who are not in custody recording their interactions with officials, or recording the actions of State (government, generally) agents in public places (e.g., Rodney King).

  10. Brett,

    I pretty much agree with you, with one clarification. There is one context in which police are allowed to lie like rugs, and it may well be justifiable. In an interrogation, they may lie to elicit cooperation. "Your accomplice has confessed." "We have fingerprints." "Just tell us what really happened and you can go home." Neither courts nor jurors in videotape interrogations have any problems with such lies. I'm ambivalent about them, myself.

  11. A similar law was abused in Maryland this fall. A plainclothes police officer stopped a motorcyclist for speeding. When the motorcyclist returned to his house, he posted the interaction on youtube. The police retaliated with an early morning raid.

    http://thesillyseason.blogspot.com/2010/09/weird-

    The county judge threw out the charges. I hope that judges in Illinois are not more susceptible to pro-prosecution bias, especially in an instance in which a little bit of sunlight would go a long way.

  12. I'm not particularly ambivalent about it. There are very few circumstances in which anybody working for the government should be permitted to lie to you. Pretty much limited to espionage and hostage negociations.

    You might think that the innocent person being interrogated would know the lie was a lie, and so stand pat. But the innocent person might very well be aware that it's possible to be convicted on testimony even if you're innocent, and decide to cop a plea to something they didn't do.

    So, no, I don't think cops should be permitted to lie, and even if they are, the lie should, like every other interaction, be permanently documented.

  13. Bruce, I’m pretty sure the rationale is that it would severely inconvenience the police, if you could prove in court when they’d lied to somebody, especially if that somebody is the court, during their testimony.

  14. Brett,

    You might be mixing deontological and consequential objections. A long time ago, Mark had a very nice post in this very blog on the ethics of governmental lying: a deontological position.

    If you're being consequentialist, you have to think of the totality of consequences. If the government could never lie, it could never perform a sting investigation. And the government is trying to mislead people when it publicizes any criminal prosecution–it wants people to think that the chances of detection and punishment are higher than they are. I think that the circumstances go beyond espionage and hostages.

    Although I agree with you that lying–if permissible at all–needs some careful regulation. A procedurally proper interrogation nicely addresses your particular objections to lying in interrogation. A good interrogation elicits information that the criminal would know, but an innocent suspect would not.

    Of course, you could point out that not all cops are that punctilious. I would ruefully agree.

  15. Mark:
    “Criminals may be able to use such recordings to better prepare for any future interrogations.”

    Kenneth Almquist says:
    “That strikes me as improbable. Any criminal sophisticated enough to study recordings of police interrogations is probably also sophisticated enough to refuse to be questioned without a lawyer.”

    Also, this is an argument which carries the stench of Guantanmo on it (no offense to Mark).
    One of the reasons given for not releasing prisoners there is that they could spill some alleged
    secrets of interrogation methods. The only such secrets they could spill, of course, is the
    fact that they were tortured.

  16. The back story is that Chicago police are corrupt. You can look to their record of torture in the 80s and 90s for evidence.

    As the predominant police force in the state, Chicago police detest the concept of being held accountable for their actions, legal and otherwise. As a resident of the bottom half of the state, I consider all police in the state to be corrupt (although I know that's a fiction – most likely no more than 5% are more than occasionally outside the law), and will assume so until I have regained the right to record police involvement with citizens in public locations.

  17. I did consulting for specialist doctors' groups in the 1980s. After a "misunderstanding," I not only recorded all conversations but used two recorders. I made sure that everyone knew it was all recorded. Totally floored me the number of times that specialists, knowing the discussion was on tape, proposed ways to commit illegal billing practices to Medicare and Medicaid. Federal and state felonies.

  18. Mark, I'm glad to see you covering this, but this is actually the 3rd case like this in Illinois in just pthe past year or so. Radley Balko has been on this for a while. I guess I'm just surprised because it sounds like you had never heard of this happening before. So welcome to the party and please continue to bring more light to this situation.

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