The recommendations being bandied about for solving the problem of police brutality, particularly against people of color, are unlikely to actually work. These recommendations include abolishing police unions, various proposals for “defunding” the police and reallocating resources, or terminating the force and starting anew. They are calculated to make citizens of good will feel better, but they either will never be enacted or, if enacted, will fail to solve the problem in Boston so long as terminated police officers get their jobs back, often with even higher pay.
The key in Boston to reducing brutality is to put the police at risk of losing their jobs if they engage in brutality. They are not at risk now because of union contracts and their provision for private arbitration (not Civil Service arbitration), and because of the way this private arbitration works in practice.
In a case of police brutality (usually a cop beating someone up), what usually happens first is that the officer is terminated, accompanied by a public statement by the city proudly publicizing the termination to voters. Next, the victim sues the officer and the city for damages. Damages are then awarded, or agreed to in a settlement. The city (i.e., the tax payers) pays all the damages. The police union then files for arbitration before a private arbitrator to overturn the termination.
From a list of proposed arbitrators, the city privately (so the voters never know) agrees to the union’s preferred arbitrator (preferred based on that arbitrator’s track record of pro-union awards). And lo and behold, the arbitration overturns the termination and awards full back pay in amounts as much as mid-six figures. And the city publicly blames the arbitrator. And the voters? Left in the dark as to what really happened.
Why this result? As the Globe editorial board noted more than four years, “it’s hard for an arbitrator who falls out of favor with the public safety unions to get rehired for subsequent disputes. Thus you have mutually reinforcing motivations: Arbitrators have an incentive to deliver generous awards, and public-safety unions have a reason to hold out for arbitrations.”
The same is true for termination arbitrations. As former Globe columnist Lawrence Harmon put it nearly seven years ago about David Williams, an officer who was twice terminated and twice restored by an arbitrator: “He is carving out an interesting career path for himself: He gets fired for using excessive force or lying to investigators, takes a breather from police work, and then gets reinstated with back pay by a labor arbitrator. Nice work if you can get it. Especially in Boston, where an officer gets credit for all of those lucrative hours of overtime and details he might have worked had he had stayed out of trouble in the first place.” The first of those terminations was for beating plainclothes Boston Police officer Michael Cox. The second termination was for putting a correction officer in a stranglehold.
With four different police union contracts expiring this June 30, the city should end the arbitration system that has produced such counter-productive outcomes: An officer who gratuitously assaults a civilian is terminated, but then years later he gets his job back with full back pay for all of the years that he didn’t work while suspended. In Boston Mayor Martin Walsh, who has a long labor union background, should lead the charge, since his credibility as someone sympathetic to labor is unquestioned. It is time for the city’s police contract to penalize, rather than reward, brutality.
Harvey Silverglate is a criminal defense and civil liberties lawyer in Boston. He is the coauthor, most recently, of “Conviction Machine” and a former board president of the ACLU of Mass. John Henn is a former board president of the ACLU of Mass.