This past July, Human Rights Watch issued a report claiming that police brutality is “one of the most serious, enduring, and divisive human rights violations in the United States.” The report is startling in at least two respects. First, Human Rights Watch usually trains its sights on the world’s most vicious governments, not the domestic social problems of the United States. Second, while the report echoes previous investigations by civil libertarians of police-abuse cases, it goes an important step further by urging the widespread application of international law as a weapon against what it deems an epidemic of police violence against the American people.
A careful reading of the report, titled “Shielded From Justice: Police Brutality and Accountability in the United States,” suggests that the group got things backwards. America does not have a human-rights problem. Human Rights Watch, on the other hand, does seem to have an America problem: It neither understands nor appreciates the workings of democracy in its own backyard.
Human Rights Watch emerged out of Helsinki Watch, perhaps the most prominent of the private organizations established during the 1970s to monitor Soviet compliance with the 1975 Helsinki accords. Human Rights Watch began its work without ideological bias, and it earned a reputation as a sharp critic of the Soviet Union’s failures to live up to its international obligations. It later became a fierce opponent of the Reagan administration’s Central America policies, in particular its support of the government of El Salvador, then involved in a civil war against Marxist insurgents, and of the Nicaraguan contras, the anti-Communist group that was attempting to overthrow the leftist Sandinista regime.
Since the end of the Cold War, Human Rights Watch has actually expanded its mission. The organization maintains separate projects to monitor the observance of human rights in every part of the world, and continues to issue meticulously researched and often quite powerful reports on such diverse subjects as repression in Kashmir, atrocities in East Timor, and the inhumane treatment of handicapped children in China. At the same time, the group has ventured into several new areas: It has devoted more attention to the persecution of minority groups and launched ambitious projects to publicize violations of the rights of women and homosexuals. Recent reports have thus dealt with such issues as the enforced prostitution of young girls in Asia and discrimination against homosexuals in Romania.
A further sign of the organization’s shifting focus is the criticism it now directs at alleged patterns of human-rights violations in the United States. To be sure, from the beginning Human Rights Watch has been a vociferous critic of aspects of American foreign policy, a tradition it carries forward today through its pointed attacks on the Clinton administration for its refusal to sign various international treaties, most recently that concerning the International Criminal Court. The group also publishes regular reports on such issues as the treatment of women in U.S. prisons, the death penalty, and alleged misconduct of Border Patrol agents along the U.S.-Mexican border.
But the report on police abuse is the organization’s most ambitious such investigation, and the most tendentious. As Human Rights Watch notes, police abuse is something over which Americans are deeply divided, especially along racial lines. But does police misconduct amount to a human-rights violation, a phrase that suggests crimes perpetrated by the state, sanctioned by the state, or tolerated by the state? The report conveys no doubts on this score. It carries a message of rampant police violence and official indifference. It contends that police brutality is “pervasive,” that police racism is undiminished, and that abuse goes “unchecked” by higher authorities. Besides being exaggerated and sometimes downright wrong, these conclusions are contradicted by the facts in the report itself.
There is, to begin with, the question of whether police abuse has become more prevalent in recent years. Although the report’s language often suggests that police brutality has reached epidemic proportions, the truth is that national statistics on police abuse are not compiled. The considerable anecdotal evidence in the report suggests that in some cities police abuse is declining. Nor does the report sustain the charge that police officials are passive towards misconduct in the ranks or, as was sometimes true in the past, actually encourage the worst instincts of lawenforcement officers. American cities no longer hire Frank Rizzos to run their police departments. Indeed, as the report indicates, police departments in a number of cities have implemented reform measures, such as improved training of recruits to reduce the chances of abusive behavior, and have stiffened disciplinary procedures to punish abusive officers.
The individual cases of alleged police brutality cited throughout the report — including the high-profile Rodney King episode in Los Angles — are apparently intended to demonstrate the barriers to justice in the current system. Here again, however, the careful reader might reach the opposite conclusion. In case after case, offending officers were in fact brought to justice, often even imprisoned. Sometimes, it’s true, these cases extended over years and required several trials. But in this, police-abuse cases are not so different from other criminal cases where the accused make effective use of procedural protections to delay or evade punishment. What’s more, as the American system has evolved through the years, an abusive police officer faces the prospect not merely of an investigation by his own department’s internal affairs unit, but of state or federal criminal prosecution and punishment leading to years in prison. The victims of police abuse also have the option of seeking justice through civil lawsuits; as Human Rights Watch notes, millions of dollars have been paid to abuse victims in recent years.
Not surprisingly, the report gives special emphasis to the racial dimension of conflict between police and the public. “Race continues to play a central role in police brutality,” the report alleges. “Indeed, despite gains in many areas since the civil rights movement of the 1950s and 1960s, one area that has been stubbornly resistant to change has been the treatment afforded minorities by police.”
This is the kind of sweeping, superficial, and ultimately inaccurate assertion that one might expect from a domestic cause group, but not from a human-rights organization that prides itself on disentangling reality from conventional wisdom. For example, to buttress its claim of massive police racism, the report on more than one occasion notes that abuse claims by minority citizens are proportionately higher than their presence in the overall population. For purposes of comparison, however, the relevant statistic is not the minority presence in the local population, but the frequency with which minorities come in contact with the criminal-justice system. When this comparison is employed, the results suggest that complaints by black persons of police abuse are only slightly disproportionate or not disproportionate at all. Furthermore, there is the fact, not mentioned by Human Rights Watch, that minorities comprise a majority or near-majority of police officers in a number of the cities investigated for the report, and that black chiefs of police run the departments of an even larger number of big cities, including Los Angeles, Houston, Atlanta, Detroit, and New Orleans. Such developments do not ordinarily occur in systems that are “stubbornly resistant to change.”
Where the report gives a distorted picture of police-minority relations, it skirts the role of police unions and civil-service rules in thwarting the expeditious and fair resolution of abuse cases. Most states have adopted laws intended to protect police officers and other civil servants from arbitrary or politically motivated reprisal. In practice, though, these measures also severely restrict the authority or a police chief to discipline abusive officers. Even in cases where department officials have dismissed officers for repeated acts of brutality, the officers have sometimes won reinstatement through legal appeals or the arbitration process. Yet while the report explains the impediments to effective discipline posed by certain civil-service procedures, it refrains from calling for major changes, an uncharacteristically cautious approach in a report that otherwise demands thorough-going change.
Many of the remedies Human Rights Watch proposes are so unexceptional they might as well have been copied out of an old ACLU fund-raising letter. No reasonable person opposes improving the recruitment of police, or the weeding out of habitually abusive officers, or the goal of preventing police abuse before it occurs.
Unfortunately, Human Rights Watch also advocates a substantial increase in state and federal oversight of local police matters. The report urges that each state establish a special prosecutor’s office to deal exclusively with police-abuse cases. It expresses unhappiness with the Justice Department’s reluctance to bring charges against police officers for violating the civil rights of alleged victims; in addition to advocating more aggressive federal prosecution of individual policemen, it asks for an expansion of Justice Department investigations into the policies of municipal police forces. And the report proposes that Congress adopt legislation denying federal grants to any police department that “fails to fully respect human rights.”
In justifying this proposal, Human Rights Watch cites as precedent the U.S. policy of tying assistance to foreign countries to their governments’ compliance with human-rights standards. It cannot have escaped the notice of Human Rights Watch that the countries on which human-rights sanctions have been placed tend to be brutal dictatorships that routinely murder political opponents, persecute opposition parties, muzzle the press, and commit other heinous acts that clearly qualify as human-rights violations. The authors of “Shielded From Justice” thereby demonstrate both a serious misreading of the extent of police abuse in this country and a cavalier willingness to extend to the federal government extraordinary supervisory powers over a traditional responsibility of localities.
In its most important, and disturbing, recommendation, Human Rights Watch urges that the authority of international law be invoked in police-abuse cases in the United States. Specifically, the report asserts that citizens should have the right to cite three international agreements to strengthen legal action in abuse cases: the International Covenant on Civil and Political Rights, the Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on the Elimination of All Forms of Racial Discrimination.
Although the United States has signed all three agreements, it did so only after adding reservations and understandings that effectively nullify their impact on American law. Indeed, such international covenants cannot become the basis for lawsuits in American courts without legislation passed by Congress. And successive administrations have declined to send implementing legislation to Congress on grounds that American law generally conforms to international standards.
Human Rights Watch is highly critical of this unwillingness to incorporate international law as part of the country’s domestic law, and looks forward to the day when U.S. citizens can claim that police abuse violates international standards against torture or racial discrimination. As the report points out, the standards inscribed in international covenants sometimes differ in important respects from American law. This is certainly true of the international agreement against racial discrimination. Under American law as interpreted by the Supreme Court, for an act to be judged discriminatory usually requires that it have both a discriminatory intent and effect. By contrast, under international law, it is sufficient to demonstrate effect. In other words, under international law the very fact of a racial disparity in police-abuse cases might be sufficient to “prove” racial bias by a city’s police department.
Human Rights Watch not only places more faith in international law than in American law, it places unwarranted confidence in the human-rights mechanisms of the United Nations. The U.N.’s record in dealing with the world’s most serious human-rights crises has historically been unimpressive (to put it mildly). Nevertheless, in recent years the U.N. has conducted a number of human-rights investigations in the United States; among the subjects of investigation have been the treatment of women in state prisons and allegations of racial discrimination in the application of capital punishment. Although couched in the cautious phrases of diplomacy, these reports have expressed dissatisfaction with American policies.
The timing of the Human Rights Watch report suggests a similar desire to dress up as an appeal to human rights — and to international law — what is in fact a condemnation of American policies with which the report’s drafters find themselves in political disagreement. Although the United States has recently experienced a number of well-publicized police-brutality cases, the same could be said for any period since the 1960s. If anything, police departments pay more attention to the prevention of abuse in their recruitment and training policies than ever before.
At the same time, police departments in many cities have recently adopted more aggressive lawenforcement tactics, notably in cracking down on so-called quality-of-life crimes, such as public urination, the open use or sale of drugs, subway fare-beating, and similar non-violent offenses.
The emphasis on quality-of-life enforcement began in New York at the instigation of Mayor Rudolph Giuliani in 1994 and has been credited by many New Yorkers with making the city safer, more civil, and in general a better place to live. Although some minority spokesmen have complained that the new policy has led to an increase in police abuse, others have credited the new tougher line with having contributed to the revival of declining neighborhoods, including Harlem. Other cities have taken note of the steep decline in crime rates in New York, and have instituted similar policing tactics.
Human Rights Watch takes a dim view of quality-of-life policing, is disturbed by its popularity with the public, and objects to Giuliani’s law-and-order policies. In this, it echoes the views of the New York Civil Liberties Union.
The NYCLU’s parent organization, the American Civil Liberties Union, has, of course, played a central role in the ongoing debate over American law enforcement for decades, and is best known for having spearheaded the legal effort to broaden the rights of criminal defendants. In recent years, the ACLU perspective has suffered a series of legislative setbacks, of which New York state’s decision to reinstate the death penalty is the most vivid example. And where in the past the civil-liberties movement often won change in criminal-law procedures through the courts, in recent years the pendulum has swung in the opposite direction, as the federal judiciary has issued decisions that have restricted the rights of criminal defendants.
There is a considerable overlap of personnel between the ACLU and the lawyers and scholars who served as consultants to the Human Rights Watch report on police abuse. This is consistent with a pattern in which liberal and leftish cause organizations, having failed to win change through the normal channels of American democracy, “go global” to press their issues through international treaties and institutions, especially the U.N. With an American public strongly supportive of the kind of stepped-up crime-fighting techniques undertaken in New York, it is understandable that civil libertarians and groups like Human Rights Watch might turn in frustration to international law for a solution that they cannot now win domestically.
They are, however, seriously mistaken in believing that reform can be promoted by “globalizing” the social problems of democracies. Indeed, the very suggestion betrays an astonishing lack of faith in the American democratic system and a misunderstanding of the process of winning political change in this country. Moreso than any other system, American democracy is flexible and open to adjustment. But Americans quite rightly resist change that is imposed by institutions not subject to popular control. They are certain to resist the notion that specialists in international law are better equipped to pass judgment on the system’s shortcomings than Americans themselves.
“Shielded From Justice” never explains why the United States should recognize the authority of international law and global institutions. The report’s authors presumably thought the answer to be self-evident. This in itself explains why Human Rights Watch, despite its impressive record in publicizing and protesting the crimes of the world’s dictators, is not likely to exert a similar influence in the debate over social reform in the United States.
Arch Puddington is vice president for research at Freedom House.
