How Many Hats Should a Law Enforcer Wear?

An article deep in the first section of this Sunday's New York Times 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."

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.

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.

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.

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.

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?

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.

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?

Robert Wechsler
Director of Research-Retired, City Ethics

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