Cops Who Kill and the Limits of Self-Regulation

The grand jury in Ferguson, Missouri failed to indict police officer Darren Wilson for the shooting of unarmed teenager Michael Brown. Then a grand jury in New York failed to indict Officer Daniel Pantaleo in the choking death of Eric Garner.

This isn’t just a matter of two high-profile cases in a row. Generally, grand juries are reluctant to indict cops. Not just reluctant overall, but comparatively reluctant. Because generally, grand juries do indict the people brought before them. Indeed, statistically, it is incredibly uncommon for grand juries to fail to indict. In 2010 (the most recent year for which data exists) U.S. attorneys prosecuted 162,000 cases, and failed to get indictments in just 11 of those cases. But grand juries don’t like to indict cops.

And there’s a certain logic to that reluctance. Police officers generally have a tough job. They are issued deadly weapons and asked to insert themselves into situations that the rest of us want desperately to avoid. This clearly requires a lot of situation-specific judgment. Most outsiders don’t understand the principles of modern policing, nor the challenges presented by life “on the street.” It’s easy to imagine — even absent any conspiracy theory and minus any accusations of racism — why a grand jury, and the prosecutor that guides it, might be reluctant to indict a cop.

This reluctance is part of a general pattern in society. There are circumstances in which outsiders generally are and generally should be incredibly reluctant to judge. Courts are generally quite reluctant, for example, to second-guess the work of licensed professionals. A court won’t typically tell a surgeon she’s done sloppy work, even if the patient died, unless credible expert witnesses — namely other surgeons — swear that the surgery didn’t meet their profession’s own standards. What if those standards are themselves flawed? Here, too, courts are generally reluctant to intervene. Professions like medicine, nursing, and engineering are effectively given monopolies over fields of practice because (or so the story goes) their work is so complex, and requires such nuanced judgment, that only the members of the profession itself are qualified to set standards and to adjudicate violations.

This reticence to judge extends to the business world, too. Under the “business judgment rule”, courts (in Canada, the US, the UK, and elsewhere) are generally reluctant to tell a corporation’s board of directors that they’ve failed in their duty of care vis-a-vis shareholders, because the court lacks the competency to do so. So long as the board is found to have taken suitable care in their decision making process, the substance of their decision will not be second-guessed.

But there’s a proviso, here, a limit. Reluctance to judge from the outside doesn’t imply a license to kill, either figuratively or literally. The set of circumstances in which outsiders should be reluctant to judge the behaviour of a powerful occupational group is pretty strictly limited to circumstances in which the members of that group do a good job of monitoring their own behaviour and enforcing standards that serve the public well.

This means that any group — any group — that wants to be left to set its own standards, and to be largely free from external scrutiny, needs to work incredibly hard to set and enforce suitable standards internally. There are lots of ways of doing that, including codes of conduct, training, mentoring, and so on. Also useful is a general obligation on the part of members of the profession to call out other members who violate the rules. But tight self-regulation is the quid pro quo. Fail at that mission, and you are going to find the public sticking its nose in. This applies to boards who want to be free from meddling shareholders, accountants who resent intrusive financial regulations like those embodied in Sarbanes-Oxley, and cops who think the public just doesn’t understand.

2 comments so far

  1. JP on

    Really well said, Chris. Your assertion of the quid pro quo is right on.

  2. Roger Terry on

    the Grand Jury was abandoned by its originator, England, long ago. It is open to corruption by politically appointed prosecutors. Just the fact that they are held in secret should tell you enough.

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