Applying U.S. Attorney Preet Bharara's worldview about fighting corruption to holding the NYPD accountable for police misconduct
By LOUIS FLORES
To a packed banquet room that was ringed with people forced to stand for lack of seating and to an unprecedented overflow room with people with a live feed of his remarks, U.S. Attorney Preet Bharara of New York’s southern district addressed civic leaders, law school students, the media, and plain citizens at New York Law School on Friday, just one day after his office ordered the shocking arrest of New York State Assembly Speaker Sheldon Silver (D-Manhattan).
“Why do officials, who are supposed to hold the public trust, and who are supposed to know better, keep breaking the law, even knowing what the consequences will be ?” U.S. Attorney Bharara asked, rhetorically, in an address that alternated between being philosophical, introspective, and, at times, humourous.
After alluding to Speaker Silver’s arrest, U.S. Attorney Bharara shared anecdotes about the role of money in corrupting the official work of each of former New York City Councilmember Daniel Halloran (R-Queens) and former State Assemblymember Eric Stevenson (D-The Bronx). Then, U.S. Attorney Bharara made a point of asking his audience to reflect on the impact of public corruption.
“So, how should all of this make us feel as citizens and as taxpayers ? And again, as I’ve said before, I think the people of New York should be disappointed, but they should be more than disappointed. They should maybe be angry. When so many of their leaders can be bought for a few thousand dollars, they should think about getting angry,” U.S. Attorney Bharara said.
During his remarks, U.S. Attorney Bharara raised issues not often addressed by the mainstream media, in particular about the integrity of city and state government. Noting that incumbent legislators faced a higher probability of being arrested than being defeated at the polls, U.S. Attorney Bharara challenged his audience to examine the corrupting role of money in determining government policies.
“Given the allegation in case after case after case, how many other pending bills were born of bribery ? And worse, how many passed bills were born of bribery or impoper influence ? How about items in the budget ? How much of the work of the city and the state government is tarnished by tawdry graft ?” asked U.S. Attorney Bharara.
Then, before the feeling of despair could set in amongst his audience, U.S. Attorney Bharara cast his office as the source of hope and trust in government.
“While I continue to believe that public corruption in New York is more than a prosecutor’s problem, you should rest assured that the people in my office are extremely busy and will continue to do what prosecutors do. And that means being as aggressive and proactive on public corruption as we are on gangs and drugs and organised crime and insider trading and everything else,” U.S. Attorney Bharara said, adding, “Because, whenever corruption is on the rise, that means democracy is on the decline.”
In subsequent remarks, U.S. Attorney Bharara emphasised his office’s willingness to investigate anyone, including city and state officials, regardless of party affiliation, and he criticised the concentration of power in just a few individuals, notably in the modern-day Roman triumvirate of the “three men in a room” in Albany, who essentially govern the state government.
This proverbial “three men in a room” are said to be Governor Andrew Cuomo (D-New York), Speaker Silver, and Temporary President of the New York State Senate, State Senator Dean Skelos (R-Rockville Centre).
With his office having worked on so many cases of corruption, U.S. Attorney Bharara spoke of a common denominator amongst organisational cultures, which later became targets of corruption investigations.
“It’s a worry that I have that in a lot of places and a lot of quarters, people learn to be focused on just what the line is, the technical line, and they think about how close they can get to the line without going over. And it’s what I call, aspiring to the minimum.”
U.S. Attorney Bharara essentially said that flirting with the fine line of the law was an easy way for organisations to get into legal trouble.
“If everyone around you is thinking, ‘How close to the line can I get ? What is the ethical violation, precisely ? How can I make sure that I’m just to the left of the what the outside pay rules are ?’ Or, ‘How can I make sure I’m just to the left of what the disclosure obligations are ?’ Or, ‘Just to the left of what the campaign finance rules are ?’ I mean, that’s great, knock yourself out. But it’s going to get you in trouble, and it sends a message to everyone else that it’s O.K. to do. And not everyone is going to stay in the right side of that line, particularly when that message is coming from the top.”
By having cast his office in the trusted role of the champion of accountability and by speaking in such a manner as to describe new standards of ethics, U.S. Attorney Bharara went on to describe a dashboard of problems inherent in a broken political system. U.S. Attorney Bharara’s remarks implied an objectivity given to him by virture of his office’s safe removal from the pressures of elected office. U.S. Attorneys are nominated by the President, sometimes with the advise of the senior U.S. Senator of the state in which each respective district is located, and assume office after confirmation by vote of the entire U.S. Senate.
Speaking derisively of de facto power structures that concentrate influence in a small group of men, specifically amongst the “three men in a room,” U.S. Bharara said, “You don’t tolerate dissent, because you don’t have to. You don’t allow debate, because you don’t have to. You don’t favour change or foster reform, because you don’t have to, and because the status quo always benefits you.”
In further remarks, U.S. Attorney Bharara spoke about the opportunity costs of concentrated power and public corruption in terms of lost innovation and change that never materialise. Corruption also “undermines our faith in the system and in democracy,” U.S. Attorney Bharara said.
In still yet further remarks, U.S. Attorney Bharara said that one way to stop misconduct is by shining a light on it, and he noted the example of a slush fund allegedly at the disposal of Speaker Silver, calling attention to how the slush fund ceased to exist after a reform law was enacted. To balance his laments about officials, who engaged in misconduct, U.S. Attorney Bharara also noted the role of others in allowing misconduct to take place.
“The problem is not so much the bad guys, although the bad guys are a problem. The biggest problem is the good guys, who don’t do anything about it,” U.S. Attorney Bharara said.
U.S. Attorney Bharara made this observation when asked to compare corruption on Wall Street with corruption in Albany. Objecting to lack of fairness in having to be forced to choose which was worse, U.S. Attorney Bharara said, in part, “If you can somehow figure out a way to give courage to the people, who know better, who knew better, and were brought up better, and who want to do the right thing, then I think you can solve a lot of problems that way,” offering a seeming encouragement to whistleblowers.
Applying U.S. Attorney's Bharara's philosophy of fighting corruption to police reform
U.S. Attorney Bharara’s worldview about corruption and accountability would come to be tested during the question and answer portion of his appearance at New York Law School.
A government and police reform activist, Scott Caplan, rose to ask U.S. Attorney Bharara a question.
“Where are local prosecutors ?“ Mr. Caplan requested, asking if the anger that U.S. Attorney Bharara said voters should be feeling towards elected officials should be extended to include elected District Attorneys and the elected state Attorney General, who rarely bring public corruption and police misconduct cases. “It always seems to be the Feds that hold our elected officials accountable,” Mr. Caplan said.
U.S. Attorney Bharara replied, “No, I don’t think you should be angry” at District Attorneys, adding, “I can only speak about the work that we do, and I don’t know what kinds of leads other offices get. I don’t know what kinds of priorities other offices have. The Manhattan District Attorney and I get along very well, and he’s, I think, a terrific prosecutor and has done a lot of important cases, as has the state Attorney General, significant public prosecutions, political corruption prosecutions, as well as financial prosecutions,” U.S. Attorney Bharara said, closing his answer with, “So, I can’t really speak to that, and sometimes we work on things and investigate things together. So, I have no complaints.”
In New York, some prosecutorial investigations just disappear, quietly
As has been noted before by Progress Queens, some prosecutors have appeared to turn their backs on corruption or misconduct. For example, the alleged bid rigging of each of the racino contract at Aqueduct Racetrack in South Ozone Park, Queens, and of the Emergency Communications Transformation Program, or ECTP, contract in respect of New York City’s 911 emergency call system have been referred to prosecutors, but years have passed since then with no update about prosecutorial investigations.
Similarly, Progress Queens has reported about that the lack of accountability for unaccounted government funding allocated to the politically-connected nonprofit, Corona-Elmhurst Center for Economic Development, a case that has become a metaphorical hot potato and, consequently, has apparently gone uninvestigated.
To the point raised by Mr. Caplan’s question about police misconduct cases, Queens District Attorney Richard Brown refused to investigate the circumstances of the kidnapping of former New York Police Department officer Adrian Schoolcraft and his detention at Jamaica Hospital, where he was committed against his will, by fellow NYPD officers in an apparent act of retaliation against officer Schoolcraft over his revelations of quotas and other allegations of corruption and misconduct at the NYPD.
Whereas a few minutes before Mr. Caplan asked U.S. Attorney Bharara about the lack of action by local prosecutors to bring forth police misconduct cases, U.S. Attorney Bharara had said, in part, “If you can somehow figure out a way to give courage to the people, who know better, who knew better, and were brought up better and who want to do the right thing, then I think you can solve a lot of problems that way.”
Now, the U.S. Attorney was saying that voters should not be angry at District Attorneys, a contradiction that Mr. Caplan told Progress Queens he found difficult to accept.
“What happened to Adrian Schoolcraft, dragging him to a hospital and being detained for almost a week and having medications forcibly injected into him is a kind of a thing that happens in Stalinist countries,” Mr. Caplan said.
NYPD misconduct, such as the mistreatment of Officer Schoolcraft, has merited a thorough legal investigation, police reform activists say.
Unfortunately, the fate of Officer Schoolcraft often goes overlooked by officials, who are embarrassed by what the NYPD did to allegedly retaliate against Officer Schoolcraft. In revelations published by The Village Voice, Officer Schoolcraft made public recordings he had made in secret, which revealed that the NYPD enforced quotas for arrests and for stop-and-frisks, and that crime statistics were being manipulated.
Asked about how U.S. Attorney Bharara could overlook the glaring example of the Queens District Attorney’s Office refusal to investigate the criminal kidnapping and detention of Officer Schoolcraft, Mr. Caplan said, “I wouldn’t read too much into the U.S. Attorney’s comments, because the Obama administration has had a terrible track record when it comes to whistleblowers exposing government secrets.”
More pointedly, Mr. Caplan said, “I’m waiting for this administration,” referring to the administration of Mayor Bill de Blasio (D-New York City), “to say one thing about Adrian Schoolcraft. I’ve never heard Mayor de Blasio mention his name. And for a mayor and a city comptroller to be so eager to settle cases against the NYPD, it would be nice to know what is happening to Adrian Schoolcraft,” adding, “Not only should the city consider a settlement to Adrian Schoolcraft, I don’t know why he continues to be suspended after all these years.”
Mr. Caplan then invoked examples of the New York City settling other notorious cases of law enforcement misconduct, saying, “So, if there can be justice for the Central Park Five, there should be justice for Adrian Schoolcraft, who is lauded by Frank Serpico,” a former NYPD officer turned celebrated whistleblower. Mr. Caplan explained that he wasn’t comparing the two different cases in terms of suffering, but, rather, to draw attention to the need to compensate victims of injustice.
Mr. Caplan also questioned the lack of accountability for the NYPD’s retaliation against Officer Schoolcraft, saying, “The deputy commander was never really disciplined, unless you consider a transfer to be sufficient, which I don’t.”
When asked by Progress Queens whether U.S. Attorney Bharara’s belief that fostering a culture that encourages good people to come forward to stop the misconduct by others was a possibility at the NYPD, Mr. Caplan was not optimistic, saying, “I don’t think the NYPD can do it by themselves,” adding that he believes that the city needs independent prosecutors to investigate and prosecute complaints of police misconduct.
“Most of the oversight we have is in the executive branch of the city government,” Mr. Caplan said. He wasn’t exactly making a criticism of Mayor de Blasio, Mr. Caplan said, adding, “But we need independent oversight regardless of who the mayor is.”
The question and answer period following U.S. Attorney Bharara’s remarks at the New York Law School did not allow for follow-up questions to be asked. Mr. Caplan was asked by Progress Queens to evaluate U.S. Attorney Bharara’s answer to his question.
An exacting political observer, Mr. Caplan did acknowledge that U.S. Attorney Bharara has closely collaborated with elected prosecutors, mentioning, as an example, the meeting that U.S. Attorney Bharara had with Attorney General Eric Schneiderman (D-New York) after the premature closure of the Moreland Commission. Nevertheless, Mr. Caplan said he didn’t agree with U.S. Attorney Bharara’s response, adding, “I do think that New York voters should be angry at their elected prosecutors,” noting that there was a limit to what a U.S. Attorney can do.
During the interview with Mr. Caplan, he made observations about the opportunity cost of elected prosecutors being encumbered by their focus on very low level crimes and their associations with state officials, the latter which Mr. Caplan noted may be too close.
“I wish local prosecutors could be more independent of local officials and could do more things that the U.S. Attorney is doing,” Mr. Caplan said.
Of cases against police misconduct, Mr. Caplan again noted failings by elected prosecutors. For example, Mr. Caplan asked why do elected District Attorneys empanel grand juries in police misconduct cases when “they never get indictments.”
Furthermore, Mr. Caplan said, Attorney General Schneiderman recently made a reform recommendation (which was rejected by Governor Cuomo) to improve the independence of police misconduct prosecution cases. However, Mr. Caplan questioned why the Attorney General was silent about the need to improve police oversight during his first term as the state’s top prosecutor, adding that Green Party candidate Ramon Jimenez, one of Attorney General Schneiderman’s challengers in last year’s state elections, had expressed the same criticism, too.
When asked by Progress Queens about U.S. Attorney Bharara’s observation that unchecked corruption undermined the faith by voters in the system and in democracy, Mr. Caplan made two separate responses, a first, pertaining to public officials, generally, and a second, pertaining to the NYPD.
Speaking of government officials, Mr. Caplan said, “We need full disclosure of outside income and term limits, particularly for leadership positions, but there should be term limits on legislators. They should not serve lifetime terms,” adding that term limits were “working in New York City,” since “people can no longer hold jobs forever.”
“In terms of the NYPD and police departments, in general,” Mr. Caplan said, “I think we need special, independent prosecutors to handle all cases against police officers.”
The realities of the political landscape facing police reform
In his interview with Progress Queens, Mr. Caplan spoke about the complex political circumstances confronting the police reform movement.
At one extreme, Mr. Caplan spoke to the need to perpetually seek the independence of federal prosecutors to lead investigations after the occurrence of police-involved misconduct, agreeing with sentiments that that was not an effective way to get to the root of the lack of accountability at the NYPD. At one point, Mr. Caplan said, “It’s unrealistic to expect the U.S. Attorney to take on the job,” of handling every case of police misconduct, “because the U.S. Attorney can only handle the biggest cases.”
(In an interview last December, former Judge Milton Mollen, the former chair of the NYPD investigatory panel named after him, the Mollen Commission, noted the role of federal prosecutors in rendering justice in the chokehold homicide case of Anthony Baez. However, Judge Mollen stopped short of saying whether federal prosecutors were the answer to community concerns over the inadequacies with each of police accountability and with the District Attorneys.)
At the other extreme, Mr. Caplan spoke to the political realities of elected city and state officials, saying, “Meanwhile, it’s politically impossible in this environment to enact laws to create independent prosecutors, given the opposition of both the state prosecutors’ association and the Republican-controlled State Senate.”
One reason some police reform activists are seeking relief from U.S. Attorney Bharara in the effort to reform the NYPD was his self-professed independence from the political process that, as Mr. Caplan noted, made it impossible in this political environment to enact a reform law that would create a permanent, independent prosecutor to oversee police misconduct cases.
Another reason was the role of the U.S. Attorney Bharara’s office in reviewing the failing conditions at Rikers Island and making recommendations for reform. The U.S. Attorney’s Office has established a recent reform precedent in being proactive about ending constitutional rights abuses in correctional facilities. Extending a similar approach from the city’s corrections department to the police department should not come as a stretch, some say.
Progress Queens asked U.S. Attorney Bharara during the question and answer period following his remarks at New York Law School whether his office could dedicate a team of prosecutors to examine issues of police brutality and police officer-involved fatalities at the NYPD, and then make recommendations for reform, similar to what his office did with respect to Rikers Island.
U.S. Attorney Bharara said that his office has a “very proud record” of upholding and enforcing the law “against law enforcers.”
“As I’ve said on other occasions, we have -- you hate to do it, and it breaks your heart -- but since I’ve been the U.S. Attorney, 20 police officers have gone to prison for various crimes,” U.S. Attorney Bharara said, adding, “We have sent F.B.I. agents to prison for committing crimes. And so those are forms of public corruption, which is part of what we are talking about today. So, there’s nothing more important than that.”
Notwithstanding this pattern of criminality and the unaddressed issues of each of the existence of race-based policing tactics, known as “Broken Windows,” that is used by the NYPD ; questions about the integrity of the Civilian Complaint Review Board, or CCRB ; and the current controversy over the killing of so many citizens in NYPD interactions, U.S. Attorney Bharara said that he thought that there was sufficient supervision over the NYPD.
“With respect to the New York City Police Department, I think -- my sense is, is that there are a lot of people looking at that. There’s now, you know, an inspector general. There are court decrees. There’s a continuing court case,” U.S. Attorney Bharara said, adding that, “There have been times when the Southern District of New York and some other U.S. Attorney’s Offices, in the Eastern District of New York some years ago, thought it made sense to take a deeper look, because of things that were going on, and, if that ever happens, we don’t hesitate to do so.”
U.S. Attorney Bharara continued his assertion that the existing supervision over the NYPD was sufficient by describing his respect for each of former NYPD Commissioner Raymond Kelly and current NYPD Commissioner William Bratton.
“I had a great relationship with Ray Kelly. I have a great relationship with Commissioner Bratton. I think that they are both unbelievably strong and good and smart and lawful and caring public servants,” U.S. Attorney Bharara said, qualifying his praise with, “That doesn’t mean that there’s not sometimes some bad things that go on there. And Commissioner Kelly acknowledged that, when he had to, and Commissioner Bratton acknowledges that. And if there ever comes a time, as I’ve said before, we’re not scared of anybody, and, you know, we look at our partners as partners. But when they cross the line, we take appropriate action there also.”
Mr. Caplan, the police reform activist, told Progress Queens that he was not impressed by U.S. Attorney Bharara’s assertion, namely, that existing NYPD oversight was sufficient.
“Unfortunately, most of the mechanisms that have been created are not independent,” Mr. Caplan said, noting that, “The inspector general reports to the commissioner of the Department of Investigation, who reports to the mayor. The CCRB is toothless ; it reports to the mayor. Internal Affairs reports to the police commissioner.”
Of U.S. Attorney Bharara’s promise to investigation the NYPD, if conditions warranted it, Mr. Caplan said, “I’m inclined to take Preet as his word, that he will go after New York officials, if he finds a pattern or practise of violating constitutional rights.”
However, Mr. Caplan said that he found U.S. Attorney Bharara’s description of his relationship with the former and current police commissioners troubling, saying that, “I nonetheless disagree with his assessment of Commissioner Kelly, whose oversight of the police department make him responsible for numerous constitutional violations, particularly during the Republican National Convention in New York City, Occupy Wall Street at Zuccotti Park and on their marches, and I think a serious case could made for a case for charges against Commissioner Kelly,” for those violations, Mr. Caplan said.
The need to investigate constitutional rights violations by the NYPD in recent years past
When asked by Progress Queens to expand about an investigation of former Commissioner Kelly, Mr. Caplan said that just as many activists thought that former President George Bush and former Defense Secretary Donald Rumsfeld ought to be held responsible for constitutional rights violations during the Bush administration, Mr. Caplan said that a similar case “could made for Mayor Bloomberg and his police commissioner, Ray Kelly.”
In the final year of the Bloomberg administration, a federal judge in a class action case ruled that the NYPD was violating the constitutional rights of New Yorkers by prosecuting its "stop-and-frisk" policing tractic. No one has been officially held accountable for ordering the constitutional rights violations.
“With respect to Commissioner Bratton, he’s only been in office for only a year” this go-around, Mr. Caplan said, adding, “and the police department is reforming. But I do fundamentally disagree with his vision of Broken Windows policing, which he and the mayor continue to defend.”
Locally, Mr. Caplan noted some progress, if only in attitude, saying, “At least this mayor acknowledges that reforms are necessary, where the last mayor fought every request for change.”
Mr. Caplan added, “But the reforms are not sufficient. It’s extremely important that prosecutors that are independent of the police department handle police misconduct cases and that police officers be disciplined,” noting a common complaint by some police reform activists that the police commissioner wrongly has discretion to reject disciplinary recommendations made by CCRB. Mr. Caplan requested that if the police commissioner was going to reject CCRB’s disciplinary recommendations, then the police commissioner should at the very least express in a public writing the reasons why the disciplinary recommendations were not being imposed.
On a federal level, Mr. Caplan said he did see a role for federal prosecutors in holding the NYPD accountable for misconduct, pointing out that U.S. Representative Jerrold Nadler (D-Manhattan) had written to the U.S. Department of Justice during the Bloomberg administration, requesting a civil rights investigation into the police department over allegations that the NYPD has engaged in brutal misconduct towards Occupy Wall Street activists.
For his part, a common complaint made by U.S. Attorney Bharara is that it shouldn’t be the role of federal prosecutors to fix every political problem in city and state government. To some extent, he is correct.
A non-prosecutorial reform that could be made to the NYPD, according to Mr. Caplan, would be to downsize the police force, in accordance with recommendations made by Alex Vitale in an essay published in The Nation magazine, in which Mr. Vitale, a noted expert on police issues, questioned the overuse of police confrontations in so many aspects of peoples’ lives. Amongst Mr. Vitale’s recommendations were requests to withdraw police from mental health interventions and from school settings.
Another non-prosecutorial reform that could be made in respect of the NYPD, Mr. Caplan said, would be to require the City of New York to stop insisting that settlements of police misconduct cases must contain non-admissions of fault.
“The city should admit wrong-doing when appropriate,” Mr. Caplan said, adding, “The city should discipline police officers, so that there’s a real link to police officer misconduct, so that there is a way to reduce future instances of police misconduct.”
However, in the opinion of some police reform activists, U.S. Attorney Bharara has overlooked the conditions in this political environment, where Mayor de Blasio has had to appease police unions, who oppose improvements in NYPD accountability, in exchange for Mayor de Blasio receiving their political support, much as District Attorneys perhaps do not take it seriously to investigate and prosecute cases of police misconduct, because District Attorneys, too, need the same political support of police unions to keep winning reëlections.
The non-prosecutorial reforms suggested by Mr. Caplan face an uphill battle for enactment, because they require political will, a frustrating circumstance that surely U.S. Attorney Bharara can relate to, given his own experience with the lack of political will by the “three men in the room” up in Albany to enact ethics reforms.
'Aspiring to the minimum'
Police reform activists in New York City face their own local triumvirate, which is said to be Mayor de Blasio, Commissioner Bratton, and City Council Speaker Melissa Mark-Viverito (D-Manhattan), the latter who was installed in her leadership position by Mayor de Blasio in a backroom deal that is itself under investigation.
These powerful officials rely on the support of big business interests, who support over-policing and, thereby, oppose efforts to reform the NYPD. Furthermore, when a City Council staffer publicly contradicted the testimony provided by Commissioner Bratton at a City Council hearing, Speaker Mark-Viverito retaliated against the whistleblower. The local triumvirate don't tolerate dissent and reject proposals for fundamental reforms that would overhaul the NYPD, because the status quo works for them.
For U.S. Attorney Bharara to succeed in his aims to restore faith and trust in the system and in democracy, he would ultimately need to address the lack of confidence in law enforcement. He could begin to do that by shining a light on misconduct at the NYPD in the same way his office did at Rikers Island, some police reform activists say. As it stands, Commissioner Bratton has at least twice escalated the NYPD’s flirtation with violating its compliance with the Handschu Agreement, a court decree in an ongoing court case that restricts the NYPD from monitoring the political activities of citizens, revealing that the NYPD’s real commitment to civil liberties and constitutional rights is to just do the minimum, an attitude that U.S. Attorney Bharara had said earlier in his remarks that should raise concerns about an organisation’s integrity.
If the U.S. Attorney’s Office cannot relate to community concerns about either the proven lack of accountability at the NYPD, a culture that is hostile to whistleblowers, the need to investigate civil rights abuses, the need to hold officials accountable for ordering constitutional rights abuses, or the lack of democratic representation of police reform activists within the power structure in New York City, can U.S. Attorney Bharara and the good guys in his office at least see the erosion of the Handschu Agreement as a warning sign ?
In other words, can the good guys find the courage to do the right thing ?