IHR Clinical Lecturer in Law Comments on Report Submitted to UN Committee Against Torture Claiming Chicago Police Abuses

As ‘We Charge Genocide’ Preps to Address UN on Brutality Claims, Experts Weigh in

Evelyn Wang
The Youth Project
November 11, 2014

The shadow report on police violence against minority youth that Chicago activists We Charge Genocide will present to the United Nations Committee Against Torture this week is consistent with past studies and could receive a favorable response from the UN, experts say.

Released last month, the report alleges that the treatment of African-American and Latino/a youth by the Chicago Police Department counts as torture under the UN Convention Against Torture.

We Charge Genocide says the United States violates six of the Convention’s articles by allowing the CPD to torture black and brown youth with near impunity: adequate measures to prevent torture, adequate education about the ban of torture, systematic review of interrogation methods, a prompt and impartial investigation, a right to file charges of torture without retaliation, and legislatively ensured compensation for victims.

Delegates from WCG will make their case at the Committee’s 53rd session in Geneva, during which a 10-expert panel will evaluate the U.S.’s record on issues including police brutality.

An international human rights expert says if the report’s data is accurate, then the CPD’s actions count as torture and article violations under the Convention.

And the work of two criminal law justice experts in Chicago, as well as news reports and past studies, seem to support the report’s findings. A Culture of Impunity

The report claims that black and brown youth in Chicago disproportionately experience excessive/deadly force, abuse and harassment, illegal searches or arrests, and other police misconduct. Most of the offending officers get away scot-free, it claims.

Going by the report’s data, which the authors collected from the Independent Police Review Authority, the CPD’s civilian oversight committee, two things seem undeniable:

First, black and brown youth disproportionately experience police violence and arrests.

Although 32.9 percent of Chicago’s population is black, 77 percent and 79 percent of the youth arrests in 2011 and 2012 were black. Black citizens are 10 times more likely to be shot by a Chicago police officer and made up 75.3 percent of police shootings in Chicago from 2009 to 2013.

Second, most police misconduct complaints result in no penalty for the officer involved.

Of the 1,509 excessive force complaints made from 2002 to 2008, only 2 percent resulted in any penalty. Of those, 41 percent were reprimands or “violations noted,” and 31 percent were suspensions under five days. Of the 8.452 misconduct complaints made from 2011 to 2012, only 105 were sustained, and of the 3,837 illegal search complaints made from 2002 to 2004, only one resulted in a penalty (suspended a week or more).

In other words, brutality complaints in Chicago are 94 percent less likely to be sustained, at 0.48 percent compared to the nation’s 8, a 2007 UChicago study reported.

The study found that in more than 85 percent of analyzed police investigations, the officer was never interviewed. Other issues with investigation include long gaps between intake and contact with the accused, routinely destroyed 911 calls, and failure to consider accused officers’ complaint histories, the report said.

“The majority of complaints are not about physical abuse,” said Tracy Siska, executive director of watchdog organization Chicago Justice Project. “The majority of complaints are for disrespectful treatment by an officer. The vast majority of the time, there are no independent witnesses to what happened. It’s the officer’s word against the civilian’s, and the majority of the time, IPRA sides with the officer.”

This is also true In cases involving excessive force. Officers are often smart enough to write off their use of force as justified because of a civilian’s actions, Siska said.

Most complaints are thrown out because of the lack of an affidavit, the People’s Law Office reported in its 2012 analysis of IPRA data. Plus, many investigations drag on for years until they are thrown out for exceeding the time limit, the Chicago Tribunereported.

The number of cases sustained has grown steadily since IPRA began its Mediation Program in 2011. Beginning at 15 mediated cases, the number increased to 196 in September 2013. Each successfully mediated case results in a sustained case, IPRA says. Of those, 177 reached an agreement.

But the number of officers given a penalty has decreased in recent years, Siska said. The Chicago Police Board, the authority in charge of punishing officers, has actually started firing fewer officers since the Chicago Justice Project published its ten-year-analysis of the Chicago Police Board in 2009, he said.

Attorney and law professor Craig Futterman, who founded UChicago’s Civil Rights and Police Accountability Project and wrote the above 2007 study, said the CPD and the city protect repeat offenders and keep them on the force, sometimes in positions of power.

“The vast majority of Chicago police officers aren’t accumulating extraordinary numbers of complaints,” he said. “Yet that smaller percentage have been allowed to abuse some of the more vulnerable residents in the city with near impunity, knowing that nothing is going to happen.”

An investigative report by Truth Out supports this, finding a small number of officers who have received 10 or more misconduct complaints but who, in many cases, keep their positions. These officers’ names and misconduct investigations must now be made public under the Freedom of Information Act.

The Chicago Reporter reported that these repeat offenders, despite making up 1 percent of the police force, accounted for over a quarter of the $45.5 million in damages paid by the city between 2009 and 2011 in 441 police misconduct lawsuits.

Among the worst offenders was John Burge, who was reported to have tortured 200 criminal suspects between 1972 and 1991 to force confessions. Despite recommendations from the U.N. in 2006, Burge was convicted of obstruction of justice and perjury, not torture, even though the prosecutor believed he was guilty.

The city has received backlash for giving Burge a $4,000-a-month pension, despite his costing Chicago tens of millions in legal costs. He was released last month after a 5 1/2-year sentence, and some of his victims cannot get any compensation because of limits in the statute of limitations, the Tribune reported.

CPD officers have also been found guilty of corruption. 47 officers have been convicted of drug and gang related crimes since 2000, said a 2013 report by the University of Illinois at Chicago.

Such rogue cops are protected by a “code of silence” among police, Futterman said.

“In Chicago, we have an accountability system that most often believes the officer over anything,” Siska said.

An assistant U.S. attorney cited in the UIC report said he believed the code of silence was used in all 18 police criminal trials he prosecuted. And in 2012, a federal jury set a precedent with its ruling that the city of Chicago and CPD had used this “code of silence” to protect a drunk cop who beat up a bartender for refusing to serve him more alcohol.

This culture of protection allows the police to target the most vulnerable, namely black and brown youth, Futterman said, for whom the police have a completely different set of rules than white civilians.

“Among the things that we have observed and documented have been what we sometimes characterize as not simply policing but a system of almost apartheid-justice,” he said. “Like a two-tiered system, where there are different constitutions for that appear to apply in different communities that are often defined by race and also by class.”

In his report, Futterman found that many repeat offenders with the most complaints clustered in groups that worked the city’s South and West sides.

“It’s normal, expected, just like the weather, for kids and particularly black and some brown kids in inner city to be stopped, searched, and treated with the suspicion of being a criminal, just for being,” he said.

There’s no denying the high crime rate plaguing many south side neighborhoods, which happen to be predominantly black and brown. Futterman said because of this, police feel “they’re expected to stop, search, put their hands on folks,” and see it as a “a primary crime-fighting strategy.”

Siska said the threat of being searched at a moment’s notice could deter people from carrying drugs or guns. Under high pressure by politicians to reduce violence, police often resort to suspect tactics like stop-and-frisk.

“The police are really being left alone on an island by politicians that say…‘Solve this violence issue,’” he said. “When forced into that situation, they will use unconstitutional means to do it. That’s why the politicians won’t push for data collection, because they already know what it says.”

It’s hard to determine just how discriminatory CPD practices are, the report says, because the CPD “fails to collect key information necessary to monitor and prevent racial profiling and harassment.”

The report uses the example of contact cards, which police use to track all civilian interactions. As reported by WBEZ, contact cards have no explicit fields for whether someone was frisked. Even New York City, which has an even bigger stop-and-frisk issue than Chicago, collects this information.

Plus, there’s no checkbox for whether the stop was involuntary, although there is one for race. Reasons for the stop are filled on a case-by-case basis in a text description.

The report says this makes it much harder to track how many stop-and-frisks are unconstitutional. Futterman said the system they have would not allow researchers or police administrators to analyze hit rates or examine patterns of difference by demographic.

What’s more, IPRA’s information is based off of this incomplete data and not entirely digital, making investigation even harder.

“IPRA’s database system uses the CPD’s database system,” Siska said. “They don’t have their own, so all the data they generate goes within the CPD’s database. Any time they want to change something, like add a field, they have to ask the CPD to do it. The CPD has no incentive to do that quickly.”

Traffic stops are required by law to collect the data street stops lack, the Illinois Department of Transportation is required to analyze for racial profiling. The ACLU released a report in 2013 that found police are 2.5 times more likely to consent search a Latino motorist, even though white motorists are 2.5 times more likely to have contraband.

Futterman said this data collection has led to positive changes in how police conduct traffic stops, and should be required of street stops as well.

“In our experience, the street stops and the treatment of the street level of ‘pedestrians’ is a far greater issue and far more problematic than traffic stops,” Futterman said.

The U.N. Convention Against Torture

The Convention’s definition of torture includes “any act by which severe pain or suffering” is “intentionally inflicted…for any reason based on discrimination, of any kind, when such pain is inflicted…by a public official.”

“There’s a really strong argument to be made just by looking at the data that that is happening, that the abuse is a kind of structural discrimination,” said Brian Citro, the acting associate director of the University of Chicago’s International Human Rights Clinic. Citro has experience writing and presenting shadow reports to the U.N.

Citro said the report has a strong argument for article violations if its data is true, namely Article 12, which deals with prompt and impartial investigations, and Article 11, which requires systemic review of interrogation rules.

But this is tricky because the Convention directly applies to the United States.

“The act of any police department in the United States could constitute a violation of the treaty, but we have to think about what the federal government’s role is in this,” Citro said.

We Charge Genocide’s recommended actions for the U.N. include a Department of Justice investigation and a consent decree that will force the CPD to document, investigate, and punish acts of torture, and implement other reforms.

Citro said the U.N. “will almost certainly not” mention Chicago in its concluding observations of article violations. But he said it’s possible the committee could call for a Department of Justice investigation and consent decree that extend beyond Chicago into national trends.

“If the picture that the report paints is mostly accurate and there aren’t a lot of other competing considerations, I think it’s a legitimate thing to ask for,” he said.

The U.N. last requested action from Chicago in 2006, when a group of lawyers presented a report on John Burge.

But no matter what concluding observations and recommendations it makes on the 28th, the U.N. has no authority to enforce any of them against the United States.

This, however, does not make them insignificant.

“What’s meaningful about these treaties, monitoring bodies, processes is that it forces the U.S. government to be in the hot seat,” Citro said. “It’s a chance to kind of force the government to sit down and listen, and also be challenged and examined by an international body.”

The Fraternal Order of Police refused to comment for this article; The Chicago Police Department did not reply to requests for interview.

The article is available here.