How Many Hats Should a Law Enforcer Wear?
<a href="http://www.nytimes.com/2009/02/22/nyregion/22tickets.html" target="”_blank”">An
article</a> deep in the first section of this Sunday's New York <span>Times</span> presents an interesting
ethical dilemma. In New York State, it used to be common for state
troopers and local police officers to negotiate, effectively plea
bargain, at the courthouse with people they'd given tickets to. And
then, in 2006, the State Police set a policy banning this practice. The
grounds for the practice are best stated in the article by the current
governor, who recently vetoed a bill overturning the ban: the
policy "will prevent troopers from engaging in conduct that could lead
to allegations of impropriety, favoritism and corruption."<br>
<br>
That's a good argument. In addition, there is the issue that the
trooper already wears two hats -- enforcer and witness. A third hat is
too many.<br>
<br>
The other side, which includes judges, lawyers, district attorneys,
town officials, and some state troopers, has embraced an equal
protection argument: everyone who gets a moving violation ticket
anywhere in the state should be treated the same. They also argue that,
since troopers work primarily in smaller towns, the ban places a
greater burden on small-town citizens than on those who live in cities.<br>
<br>
Some towns have special traffic prosecutors who are permitted to plea
bargain, and county prosecutors are allowed to plea bargain tickets
given by state troopers. Prosecutorial plea bargaining is what I've
found in my state, Connecticut. But I found a problem there, as well.
My name was called, I walked up to the prosecutor, and her first words
to me were, "Why were you driving so fast?" My first thought (an
emotional thought) was to get into a discussion (or would it have been
a lecture?) with her about the assumption of innocence and leading
questions, but my second thought was to negotiate down the fine and get
back to work.<br>
<br>
The local game appears to be to arrest only for going more than 20
miles over the speed limit, which involves a very large fine, so that
officers are credited with the big catch and violators have an
incentive to appear in court, where they negotiate the fine down to
where it should have been in the first place. This seems to waste a lot
of work hours, and discriminates in favor of those with a flexible
enough job to show up in court. It's also just the sort of game, along
with the myth or fact of monthly ticket requirements, that undermines
trust in those who enforce our laws.<br>
<br>
Towns plea bargain because it's cheaper than going to trial. It's
certainly costly to pay officers overtime to testify. But negotiating
with a trooper or officer does seem like it opens things up for
unethical conduct. Officers have discretion when they hand out a
ticket. Should they have discretion yet another time (what is it that
would change their mind?)? Should they play the role of prosecutor, too?<br>
<br>
Despite the ban, according to the article, troopers still talk to
violators and their lawyers, even if they don't officially plea
bargain. And in two dozen counties, troopers serve as prosecutors
anyway.<br>
<br>
What's interesting is how unpopular the State Police's attempt at
acting ethically is. If the State Police (or city or county police) wants to prevent the
appearance of impropriety in its law enforcers' conduct, not to mention
actual favoritism or bribery, why are so many professionals, who have
their own ethics requirements, who have a limit to how many hats they
themselves can wear, so incensed? Could this be a reflection of the
frustration they feel with their professions' ethics requirements? Or
is it just a matter of convention, of wanting to do things the way they've
always been done?<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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