The British criminal justice system has perfected the bureaucratic instrument which creates work and avoids it at the same time.
The Department of Corrections in New York State has tried to fire many prison guards for unjustified force against inmates. They are generally unsuccessful because of the union contract. It gives substantial job protection rights to the correction officers, including the right to arbitration. Arbitration rarely results in dismissal because unions have a hand in picking the arbitrators.
The inability to dismiss bad apples in turn creates a culture of impunity. The inattention of numerous guards permitted two notorious murders to tunnel out of an upstate New York State prison. Two prison employees actively aided their escape. The result was not only millions of dollars in costs to New York State, but nights of terror for nearby residents with natural born killers on the loose. And then the guards brutalized inmates with no connection to the escape in a search for scapegoats to cover up their own misfeasance.
Reducing the power of public unions in paramilitary forces, like correction officers and the police force, is one of the great civil rights issues of our time. My colleague Max Schanzenbach has described how police unions impede disciplining police officers. We had another example recently in New York. There a policeman who slammed a former tennis player to ground because of a baseless suspicion has a long history of complaints about his excessive force. Police departments and prisons should be able to get rid of such people with far more summary procedures.
Prosecution of actual criminal behavior is no substitute for the ongoing discipline that can forestall the worst abuses by firing those with a propensity for bad behavior. Lawsuits can filed against the government, but settlements come from taxpayers and provide little deterrent against individual officers.
The military would never tolerate a soldiers’ union that created an obstacle course that its officers had to run before disciplining and indeed separating soldiers from the force. Why should the policy be different for other public actors who are licensed to use deadly force—in this case against their fellow citizens?
Sadly, both the right and the left are largely silent on this issue. The left does not want to speak out against public unions, despite its proclaimed concern for civil rights. The right does not want to speak out against law enforcement despite its general skepticism of public sector unions. Indeed, Governor Scott Walker in his otherwise laudable reforms in Wisconsin exempted the police. But it is one issue on which true civil libertarians and true economic libertarians can unite.