The events in Ferguson, Staten Island, Cleveland, and beyond have once again focused attention on our criminal justice system and on policing. At the core of the problems that these events have signaled is race: an issue that pervades the lives of all Americans of all hues. Race is fraught with all manner of issues, so many that to try to confront and resolve them is for me overwhelming and certainly not to be resolved in my lifetime.
So I choose to look at the one issue that impacts race and that can be addressed and resolved in our lifetime: transparency in policing and transparency in the administration of justice. The public has a right to know as much as possible about the rules governing the police and about investigations into allegations of police misconduct. As well, the public has a right to know, as much as possible, about court proceedings especially when they involve the conduct of police officers.
Transparency holds police and the players in the criminal justice system—judges, lawyers, and jurors—accountable. Accountability builds trust in these entities. If we, the people, do not trust the police and do not trust the court system, then we have no stake in these systems and therefore no reason to abide by the rules that govern them.
With respect to the police, the level of confidentiality afforded to officers, in my view, is shocking. In California, you have no right to know the names of officers against whom allegations of misconduct have been leveled. You have no right to know anything about the investigations into those misconduct allegations, even if you are the person who complained. I’m talking about complaints that are made about police misconduct that are administrative inquiries as to whether or not officers should be disciplined; I’m not talking about criminal cases.
You have no right, in California, to know what, if any, discipline is imposed on officers, even if you were the complainant. The Peace Officers Bill of Rights passed by the California Legislature ensures that confidentiality and imposes criminal penalties on those who violate that confidentiality. But consider, at the same time, complaints against and discipline imposed upon lawyers, judges, physicians, are all matters of public record. There is no sunshine when it comes to policing in California. That needs to change.
The problem is finding lawmakers with the courage to take on the powerful police unions who will likely vigorously oppose any moves toward transparency. Body-worn cameras will do much to bring transparency to policing provided that the police utilize protocols that are specific and have immediate consequences for officers who do not abide by them, and provided the protocols are online and available to the public.
All police departments have books of rules. In San Jose, that book is called the Duty Manual. It is more than 600 pages. In most police departments throughout the country, those books are not available to you, the public. That is not the case in San Jose. You can read the Duty Manual for the San Jose Police Department simply by going online to the SJPD home page or to our homepage, the Independent Police Auditor, and click the SJPD Duty Manual button.
Why is it important that the public know the rules that govern what the police can and cannot do? Well, what’s the rule in Santa Clara for members of the public recording the police? Do you know when Santa Clara police officers have to identify themselves to you? In San Jose, the rules are there for you to see. You can know exactly what the rules are with regard to recording police officers in San Jose. In Santa Clara, I have no idea what those rules are. But you, the people, have the right to know although in most cases you don’t. The public—you—should demand that all police departments put their duty manuals online. There is simply no place for secrecy in our criminal justice system.
But that’s what we have in the criminal grand jury process. In my view, the criminal grand jury should be abolished. England, the country that created the grand jury, abolished it in the 1940s, as did Wales, Ireland, Scotland, New Zealand, and Australia. In this country, while 48 states allow criminal grand juries, at least 25 of them do not use them and two have abolished them entirely: Pennsylvania and Connecticut. In California, in the vast majority of criminal cases, felony cases, we use preliminary hearings, not grand juries, to determine probable cause. These hearings are public, adversarial proceedings presided over by judges.
Our judicial system has historically been open to the people, to the public. Criminal proceedings are instituted in the name of the people of California. The public therefore should be informed, make that well-informed, about criminal proceedings and, finally, we should all fight to ensure full access to our courts.