Policing the Police: The Role of the Courts and the Prosecution

Abstract

The New York City criminal courts contended with approximately 190,000 misdemeanor arrests in 2003, up from 130,000 in 1993. This Article focuses on how, and whether, the component parts of the courts - judges, court administrators, and prosecutors - promote justice by actively and critically monitoring or overseeing the police. Police action triggers the courts' and institutional players' opportunities to influence justice. After an accused is deposited at the door of the court, all components of the criminal justice system must carefully and rigorously inspect the underlying police activity. It is time to ask whether anyone is carrying out this vital task.

Rampant pleas, usually very early in the court process, mean that most arrest go relatively unexamined. The free reign given to the police under the “Safe Streets Safe City” and “Broken Windows” campaigns is especially troubling when considered in light of the well-documented history of police misconduct and corruption in New York City. This Article focuses on the most common form of police corruption- “falsifications”, which include testimonial and documentary perjury and falsification of police records, where corrupt officers “manufacture facts” to justify unlawful searches and arrests. This Article examines the role of the judiciary and the prosecutors in enabling this falsification through practices such as giving police testimony heightened credence, reliance on pleas at arraignment, and the negative impact that problem-solving courts have on scrutinizing police behavior. It also proposes several critical changes needed to end this illegal practice, hold police accountable, and guarantee the due process rights of criminal defendants.

Keywords: Police misconduct, Mollen Commission, falsification, police perjury, problem-solving courts