HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
Summary and Recommendations:

Obstacles to Justice
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(1) The U.S. federal government should remove obstacles to the fair and thorough investigation and, where appropriate, prosecution of human rights abuses committed by police officers.

  • The Clinton administration should support the introduction of a bill in Congress to remove the "specific intent" requirement of the civil rights statutes which, in effect, undermines the spirit of the law. It should be sufficient for federal criminal prosecution that a police officer intentionally and unjustifiably beat or killed a victim without the additional burden of having to prove the officer specifically intended to violate the victim's civil rights by abusing the individual. Even without its removal, a finding of "specific intent" should be directed by the court in all cases of excessive force by on-duty officers because, by virtue of their profession, they should know that using excessive force deprives individuals of their rights and because jurors are often confused by the "specific intent" requirement.

  • The Justice Department's Civil Rights Division, particularly its Criminal Section and Special Litigation Section, should be funded adequately so that it can fulfill its mandate. The funding should be in proportion with the growth of law enforcement agencies and their personnel who are subject to investigation or prosecution by the division.

  • The U.S. Congress should pass implementing legislation for the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which include provisions on the prohibition of abusive, arbitrary, or discriminatory law enforcement activities, and President Clinton should request that the Senate consent to withdraw reservations thatundermine the spirit and purpose of the treaties. Implementing legislation of the Convention against Torture would codify torture as a criminal offense in the U.S. If U.S. residents could invoke the race convention's provisions, the disproportionate impact of police abuse on minorities could be challenged in court because proving discrimination under the treaty requires proof of discriminatory intent or effect, while the U.S. Constitution has been interpreted by courts to require proof of both intent and effect. And if reservations attached to the treaties by the United States at the time of ratification that violate the spirit of the treaties were removed, U.S. residents would enjoy additional protections from police abuse. In particular, the reservations to Article 7 of both the ICCPR and the Convention against Torture, which prohibit "cruel, inhuman and degrading treatment or punishment" should be removed so that U.S. residents would be protected from "inhuman" and "degrading" treatment or punishment not currently prohibited by U.S. constitutional standards, which frame protections in the narrower terms of "cruel and unusual" punishment.

  • The U.S. Congress should pass legislation that codifies torture as a federal crime whether or not implementing legislation for the Convention against Torture is approved.

  • Due to the common reluctance of local district or county attorneys to prosecute police officers accused of human rights violations, each state should create a special prosecutor's office to handle criminal prosecutions of officers accused of criminal acts, including cases of brutality and corruption. The special prosecutor's office should also investigate district attorneys who, for extended periods, knowingly utilize evidence and testimony of notoriously abusive and corrupt officers and take no steps to prosecute them. Too often, scandal-ridden police departments, and usually low-level officers, bear the brunt of responsibility while higher-level officials escape scrutiny altogether. Until special prosecutor's offices are created, district attorneys suspected of misconduct in this regard should be referred to the state's bar association.

(2) State and city governments should create effective civilian review mechanisms, remove obstacles to the filing of complaints against police officers, fund citizen review agencies to allow them to fulfill their mandates, and should revise their laws and practices to remove extraordinary protections for officers that shift the burden of abuse from the police onto the taxpayer.

  • Cities should create an oversight system using an independent auditor office to: identify problematic practices and policies; review investigations by internalaffairs divisions with the power to require additional investigations; and recommend reforms, monitor implementation of its recommendations, and participate in disciplinary hearings. Such an office should provide regular public reports on its activities. The oversight system should also include a fully empowered, independent fact-finding body (similar to some current civilian review boards) for receiving and investigating complaints that should work closely with the independent auditor. The oversight system should be supplemented by a city administrator who would track civil lawsuits relating to police abuse and identify trends in abuse allegations and officers named in the lawsuits.

  • Barriers to the filing of complaints should be removed. For example, individuals wishing to file a complaint alleging police ill-treatment, whether with a citizen review agency or a police department official (or other office), should be provided with clear instructions, simple forms, and a telephone contact to check on the status of the investigation. Under no circumstances should any review agency or intake officer attempt to dissuade or intimidate a complainant. Anonymous complaints should be accepted for the purpose of triggering further investigation, but should not, on their own, be used for disciplinary purposes without verification by an appropriate senior official of the person's identity. Information about the complaints process and the complaint form itself should be made available in the languages of the community.

  • Complainants should be provided with written, and regular, updates of the status of their complaints and the progress of the resulting investigation. At a minimum, the complainant should be advised that the citizen review agency or the police department's internal affairs unit has received the complaint, of any hearings or final determination regarding the complaint (including any disciplinary action taken), and complete explanations for the outcome.

  • Any officer who attempts to dissuade a complainant from filing an abuse or other complaint should be punished appropriately. If necessary, training on receiving complaints should be provided.

  • Citizen review agencies should be provided adequate resources to improve outreach efforts and demonstrate to skeptical residents that it is in their interest and worth their effort to file and pursue a complaint.

  • When federal aid for police departments is considered, the U.S. Congress should reward municipalities that establish and adequately fund civilian or citizen review agencies and whose police departments cooperate with those bodies; this information should be provided to relevant congressional committees by the review agencies.

  • Laws or policies that indemnify police officers from civil judgments should be modified in regard to serious human rights abuses. In the case of judgments against municipalities for the abusive conduct of a police officer, the municipality should seek some compensation from the officer to help pay the victim or his or her family.

  • In those states where preferential grand jury rules apply for investigations of public officials, including police officers, those rules or laws should be revised so that justice is applied equally, regardless of occupation.

  • Grand jurors have a unique role and unusual access to information about police practices in reviewing prosecutors' cases and deciding whether or not to indict police officers accused of criminal acts. Grand juries are permitted to make recommendations regarding police policies or practices in cases they consider whether or not they choose to indict the involved officers, and should do so.

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© June 1998
Human Rights Watch