Dirt Under The Rug

This is the dry story of a statistic.

By which, I mean to say, it is a story that today’s newspaper is no longer equipped to cover very well. And it is certainly not a story that could be easily gleaned by anyone who hasn’t at some point been a full-time beat reporter, a veteran who has covered an institution like, say, the Baltimore Police Department or the Baltimore State’s Attorney’s Office for year after year, learning to look behind the curtains, knowing enough not to accept a stat at face value.

You’re reading it here because I once covered crime in Baltimore for a decade and a half, and because I still live in Baltimore and still spend time now and then with detectives and lawyers in that ville. And after years of shared experience, some still talk freely enough in my company.

I have no doubt that a few simplistic souls will note that this is appearing on a blog, and that I am therefore, technically, a blogger. And if the story itself finds any traction anywhere, they will say, “See. Simon did that using the internet. He wasn’t working as a paid, professional journalist. So all that he claims for professional journalism, and the lower regard he has for our vaunted citizen journalism, is unwarranted. He is proof of our very argument.”

Which is lazy.  And dumb.  And embarrassing in its lack of intellectual rigor. But this being the internet, it will be said by some. They will tweet it, and it will have all the appearance of being clever in 140 characters or less. But it is flippant and useless, which, frankly, is a common outcome when people are thinking in 140-character morsels.

No, the reason I am able to tell you this story is not because I am now an amateur or because I have a blog. It is, above all, because a news organization paid me for years on end to cover the same approximate beat on a full-time basis. For the first three years or so, I didn’t know what the hell I was doing. I wrote a lot — more than 300 bylines in one year alone — but much of it was credulous and reactive, leavened only by what police and prosecutors told me; none of it carried much of the nuance or understanding required to actually acquire any deeper truth.  That stuff only began showing up after I’d had some years of learning the game, of rummaging documents, of learning which sources to trust.  I did all of that not as an amateur, and not as a hobby. I did it for 50 or 60 hours a week because the Baltimore Sun had a sufficient revenue stream to pay me a living wage and benefits so that I could take a mortgage and raise a family and  show up to do the work on a daily basis. I didn’t do it because I loved cops or hated cops, or loved or hated criminals or lawyers or bureaucrats. I didn’t have any other agenda than the news report itself. The sinecure of professional prose journalism, which is now threatened by a new economic model, was the only place in my city where resources were once allocated for an independent, unaligned voice to spend years in the bowels of a civic institution — long enough that I began to understand what a statistic might represent, and what it might not represent.

When I did the job, there were at least half a dozen different police reporters like me working at the Baltimore Sun and Evening Sun. We covered some ground. Today, there are two such creatures struggling to keep up, not only with the daily headlines, but with the kind of institutional reporting that is required for a story like this one to be not only discovered, but understood in all of its obscure, but essential back-and-forth.   This is no reflection on those guys: In a newsroom with more empty desks every month, they are buried by the workload.  They get to as much as humanly possible, and indeed, they have at points undertaken fine institutional reporting, witness Mr. Fenton’s work on the underreporting of sexual assaults in Baltimore. But make no mistake: The Baltimore Sun of the 1980s or the 1990s — staffed with a half dozen or more police reporters, some of whom had been gathering sources since the late 1960s — would have acquired all of the motivations and implications as  the policy change was implemented, and it would have been not only a headline, but a full-blown controversy long ago.

That isn’t to credit myself at all. This is a story that a Roger Twigg or an Ann LoLordo would have nailed long before I ever found my way to the headquarters building.  The Baltimore Police Department was a beat; and it was covered as a beat, as an institution. The daily tally of crime and punishment is always the easy part. What happened yesterday is cake. A smart fourteen year old can call a police spokesman, get rote facts and report what occurred in the 1400 block of East Baltimore Street. But what is actually happening within the institutions themselves? And what that will mean to a city? That shit, my friends, is what makes journalism a career for grown-ups.

The above preamble is important, I think. Because the story I’m going to relate to you is the kind of tale that is disappearing from the pages of American newspapers. It is arcane, and it is a bit boring and very much inside-baseball. It is also, tellingly, more important to the welfare of a city than dozens of this-happened-yesterday-police-said stories that remain a staple of our news report, both on- and off-line.

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The Stat:

In 2011, the Baltimore Police Department charged 70 defendants with murder or manslaughter.

Yet in 2010, the department charged 130 defendants with such crimes.  And the year before that, the department charged 150 defendants with killing another person in Baltimore.

Crime — and murder — is down in Baltimore — until the present year at least, when the department is again contending with a moderate spike in homicides.  But it did not decline by 50 percent.  Not even close.  Yet, in the span of a single year, the department’s deterrent against the most serious criminal act imaginable has been cut in half.  From an average of 140 defendants over the previous two years, Baltimore police are now only able to charge half as many defendants.

What is happening?

Are Baltimore’s killers showing more cunning, are murders becoming harder to solve?  No indication of that from any quarter.  Did the homicide unit lose a ton of veteran talent?  Nope.  Not between 2010 and 2011 at any rate.  No, the dramatic collapse of the department’s investigative response to murder is the result of a quiet, backroom policy change that has created a bureaucratic disincentive to charge people in homicides.

And what is this change?

Beginning midway through 2011, the Baltimore State’s Attorney’s Office, for the first time in modern history, became the sole arbiter of when to charge a defendant in a homicide investigation.  Previously, that decision rested with the police department, which would do so in consultation with prosecutors from the Violent Crimes Unit of the State’s Attorney’s Office.  Which is to say, while police detectives were expected to take guidance from prosecutors — and did so — they were nonetheless free to arrest defendants if they felt the evidence warranted a charge.

Is this bureaucratic change in any way an improvement, perhaps?

Well, yes and no.   Like I said, this is story that requires some sense of the real-life stakes involved, some nuanced understanding of the back-and-forth.  And, too, it requires an insider’s knowledge of how statistics themselves can be manipulated for institutional purposes.

In 1988, for example, there were 234 homicides in Baltimore.  Tracking all of those cases, a reporter would learn that 22 of them were cleared by the police department through arrest, but then later dropped by the state’s attorney’s office prior to indictment.  What did that mean to the police department? To the prosecutor’s office? To the city of Baltimore?

Well, for the police department it meant credit for solving 22 cases that they didn’t actually solve, given that the evidence was insufficient for prosecutors to obtain even a grand jury indictment.  Why? Because the FBI’s crime reporting logic allows police departments to take credit for all cases cleared by arrest, regardless of whether those arrests are any good at all. Once an arrest has been made — even if charges are subsequently dropped — the case is credited as cleared, and its status as a cleared case doesn’t change.

For the Baltimore state’s attorney’s office, there was no institutional cost to be paid for these 22 weak sisters. Why not? Because the State’s Attorney only computes his overall conviction rate — a statistic that he will run on for reelection every four years — using cases that have been indicted by a grand jury.  Cases dismissed prior to indictment don’t count against him either.

Get it?  Twenty-two murder cases in that given year of 1988 went under the rug, with neither side in this dynamic taking responsibility for the outcome. The police department took credit for the arrests, even though the cases were dumped unceremoniously without even a grand jury indictment.  And the prosecutor in Baltimore took no responsibility for these cases in assessing his own office’s performance. By such statistical dishonesties –of which this is not the only one, believe me — the Baltimore department was able to maintain a clearance rate in the high sixties in that given year and the State’s Attorney was able to claim a conviction rate in the low eighties in that same year.  But of course, the actual chance of anyone going to jail for any length of time for killing anyone in Baltimore in 1988 was just below 40 percent. Whoever said there were lies, damn lies and statistics needs to create a fourth, more extreme category for law enforcement stats.

Nonetheless, this was the status quo in Baltimore prior to 2011.

Was there an incentive for detectives to charge an insubstantial case just to get it off the books?  Absolutely. Was there no meaningful threat to the prosecutor’s conviction rate as a result?   Not really. Both institutions had conspired to create a statistical black hole in which they could hide a meaningful percentage of their failure.

But last year, the new State’s Attorney in Baltimore — who, notably, had campaigned for office on a claim that he would be more aggressive than his predecessor in pursuing violent criminals — managed to quietly prevail on the police commissioner to change the long-standing policy. Going forward, the prosecutor’s office alone would decide when to charge a murder or manslaughter case.

In agreeing to this, Baltimore’s Police Comissioner, who until his recent retirement had been quite effective in certain other aspects, had opened the door to a fresh, unanticipated hell. By eliminating any bureaucratic tension between the homicide unit and the prosecutor’s office, the commissioner had effectively let the air out of the city’s entire deterrent against murder.

True, there would no longer be cases charged and then dropped — that fundamental deceit had been eradicated overnight.  But now, a new, more profound dishonesty began to overtake the system. Now, the state’s attorney — acting unilaterally and without any possible contradiction by police commanders — was free to charge only those cases he was absolutely sure he could win in court. Now, police had not only been prevented from charging murders in which they had weak evidence, but also from charging those cases in which evidence was substantive, but not necessarily ironclad.

Why would this happen?  Because, again, the State’s Attorney for Baltimore is a political creature.  He needs to run for reelection every four years.  He lives by his conviction rate, and by his high-profile successes. He fears nothing so much as to, say, lose a murder case in court, or be obliged to drop the charges publicly, after indictment, when, say, a witness backs up — and then, a year or two later have the same defendant commit another crime. And why was the defendant on the street able to commit another crime? Because the prosecutor failed to convict that defendant in court.  Those are the headlines from an elected prosecutor’s worst nightmare.

Left alone to shape his own statistics, Baltimore’s State’s Attorney — instead of being more aggressive against violent criminals — is now, on the charge of murder, at least, the least aggressive in modern history. Yes, some of the cases he is no longer charging do indeed represent cases with weak evidence. But others include not-so-marginal casework — murders in which police follow-through, good pretrial prep by the trial attorneys, and yes, a little witness protection could make the difference between a killer getting a pass or getting a long prison sentence. Now, given the police commissioner’s abdication, dozens of such cases are all being quietly dumped by Baltimore’s top prosecutor.

The cost to the police department is, of course, in its clearance rate for murder, which — when you eliminate the other statistical subterfuge of prior-year clearances — is down in the high twenties when last I checked. Now, the city homicide unit is not only rightly being denied credit for cases that it should never have charged, but detectives are not getting proper credit for cases in which they have indeed developed sufficient evidence for indictment. Now, such cases — if they are not surefire courtroom victories or surefire pleas — are not being charged by a prosecutor consumed with matters of public image.

How many such cases are there? Well, again using 1988 as an example, there were 40 cases of murder and manslaughter that were indicted by a grand jury, but in which charges were dropped prior to trial. Many of these prosecutions collapsed because witnesses recanted, or changed their stories or could not be located. Shepherding and protecting witnesses is a recurring problem in Baltimore and many cases that are strong enough to charge in the immediate aftermath of a crime are later problematic after months or even years before a case is heard.  But then, the problem with such prosecutions is not in the cases themselves, but in the ability of the legal system to maintain, protect and follow through with state’s witnesses. Not charging such cases in the first place is scarcely a solution to anything.

In any event, using 1988 as a means of comparison, it’s within statistical probability to suggest that of perhaps 50 or 60 defendants who were not charged by Baltimore prosecutors in 2011 and who would have been charged under prior policies, as many as two out of every three had sufficient evidence against them to have resulted in an indictment. Meaning that for every case in which Baltimore police might have once wrongly charged a defendant on insufficient evidence, there was now, conservatively, another case, or may even two, dumped by the prosecutor’s office even though sufficient evidence to proceed existed.

So if you’ve read this far, and you understand the actual dynamic in play, you’re probably saying to yourself: What’s the solution? In the past, the detectives and lawyers simply swept their mistakes under the rug, with neither side taking responsibility for the bad stats. And now, because the state’s attorney has prevailed in this contest of statistical gamesmanship, the police department clearance rate has been savaged and some bad cases are no longer being charged, yet at the same time, good murder cases aren’t going forward.  Which is worse?  And how can this be fixed?

Well, it’s easy.  And I’ll give you as long as it takes you to read past the next string of asterisks.

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When a statistic gives you lies, you don’t try to parse the lies. You change the stat.

And in this instance, the solution is so simple, so utterly apparent that it’s almost embarrassing, or it would be if public officials in Baltimore were actually capable of embarrassment.

Of course, the solution would long elude police department officials. After all, they’re not exactly in the business of looking for truth in stats. They dumped their mistakes for years, taking clearances in cases where no indictment ever followed, and now, having lost that easy out, they’re still in the early stages of grief, notably denial and anger.

And the prosecutor?  He has no incentive to solve the problem.  He’s in the catbird seat, having shed any responsibility for bringing anything but the most obvious and winnable dunkers. If the new policy stands, he can look forward to reelection without fear of a single ugly headline.

City Hall? The mayor? Her staff? Well, if they rely on the stats provided by their law enforcement leaders, they’ll think that the prosecutor is doing fine, that his conviction rate is higher than ever, and that it’s now the homicide unit alone that can’t manage a sufficient deterrent. They’ll blame the wrong folks, if they get around to blaming anyone at all.

And meanwhile, in 2012, there’s now a nine percent increase in murder — a quiet harbinger of a new dynamic in which this quiet, backroom policy change has created an absolute disincentive to charge and prosecute murder aggressively.  And if you don’t think one thing is related to the other, think again. The same people you leave on the street, uncharged, for a 2011 killing are still out there in 2012, and for them, the game remains the same. So for the citizens of Baltimore, charging only half the number of murder defendants as in previous years is indeed a threat to fundamental public safety. But the idea that any outsider — any citizen — is going to have a handle on the back-room revolution in charging policy is absurd on its face.

No, for this, you need: A beat reporter.

Preferably a veteran. Someone with a few years of being lied to and jerked around by the same institution he now understands.  You need a pack of them actually — enough to handle the daily news report and still have manpower enough to report on the systemic issues within the bureaucracy.  And behind those reporters, you can use a good editor, and a careful copy desk, and maybe a full-throated editorial writer coming behind.  For this, you need an institution that is on the outside but understands the inside, an agency that isn’t aligned with cover-your-ass prosecutors or bury-the-mistakes police detectives.  To catch this mess when it first starts, you need a staffed newsroom that does this every day, that hears about this change when it happens — almost a year ago — and writes about it immediately, before 50 or 60 murder defendants go uncharged and about as many cases are quietly shelved.

Because if you look at the problem on paper for more than ten minutes, you’ll likely see that the solution is certain and obvious and easy.

No, it makes no sense to go back to the past deceits.  You don’t want to return to the days when detectives could take a clearance for a case that should never have been charged.  But neither do you want to live with the present policy, when a prosecutor can featherbed his electibility by reducing his responsibility for deterring the crime of murder by as much as 50 percent.

A good, healthy news organization looks at past and present, and reports — in all possible context — on what is at stake. It shames those responsible for their frauds and argues for accountability.  It looks at the lies, at the stat games, at the real and ugly motivations and it says, simply, that to be accountable to the citizens of Baltimore for their actual performance, public officials must do three things:

1)  Restore the police department’s ability to charge any crime, but encourage their continued consultation with prosecutors during that process.

1)  However, change the clearance rate for the Baltimore Police Department’s homicide unit.  From now on, give no credit for clearances by arrest that fail to result in a grand jury indictment for murder or manslaughter. Eliminate the incentive for detectives to prematurely or wrongly charge a defendant in a homicide.

2)  Similarly, change the conviction rate for the city State’s Attorney and make his office responsible not just for the disposition of indicted offenses but for all offenses charged. Eliminate the prosecutor’s incentive for dumping cases in a similar fashion.

In the past, neither agency took responsibility for the weak cases that were wrongly charged.  In the present, one agency — alone, with no check-and-balance — is taking responsibility only for the easiest of workloads. By making both agencies responsible for the totality of the investigative deterrent, we eliminate the gamesmanship and stat-based dishonesty. Police will have lost any incentive to ignore prosecutors and charge a weak-sister case that can’t be at least indicted. And prosecutors have lost any incentive to dump the tough, but necessary prosecutions of less-than-certain convictions. Everyone is responsible. For all of it. And given that everyone is now responsible, a certain feature of the new dynamic will be cooperation between the homicide unit and prosecutors. After all, both are going to be blamed for the same failures, just as both will be credited with the same success.

Baltimore officials — the mayor, say — could do this unilaterally, as a means of making their law enforcement leadership more accountable for making the actual city safer, rather than compiling their best possible stats.  God knows how much good could be accomplished nationally if the FBI and the Justice Department actually revised the way they compile such stats.

In any event, it’s almost too simple.

Last week, I was asked to speak at the Barristers Law Club gathering in Baltimore, and I accepted, knowing that the Baltimore State’s Attorney was a member and would be present. What ensued when I brought all of this up wasn’t personal, but it was pointed. The gentleman in question sat stoically, making no statement and asking no questions. But rather than consider the benefits of changing the stats so that everyone was made responsible for all of the casework and all of the outcomes, others in the room rushed to his defense.

They know him to be a fine man, and a worthy state’s attorney.  Why worry about making our statistics reflect the actual extent of his performance when we all know he’s doing such a fine job?  If he’s only charging half the murders his office did previously, he has his reasons.

I continued to argue the point, noting that while I am sure he’s an excellent fellow, perhaps we want our institutions held fully accountable for the sheer hell of it. I mean, after all, the next state’s attorney may not be quite as high-minded and heroic, and we might then want to know how many cases that desperate fellow is quietly sweeping under the rug.

It went downhill from there. My guess is if I was half as honest as I needed to be, I won’t be invited back to address that esteemed group further. And my guess is that this blog item, unless it gets picked up and reframed by mainstream media — by institutions large enough and central enough to civic life to cause a state’s attorney or police commissioner some real grief — won’t matter either.

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The problem, of course, is that I’m not institutional.  I’m an ex-police reporter who still talks to people. And, every now and then, a law club asks for some remarks or I get the inclination to write a blog item on something that happened months, or even a year earlier.  In this instance, that leaves me in a position to parse some statistical bullshit. But it’s certainly half-assed and indirect.  It’s not what a healthy institutional press is capable of achieving. Not even close.

And for all of us, the stakes are profound. It’s hard enough to hold agencies and political leadership accountable in a culture that no longer has the patience or inclination to engage with the actual dynamics of actual institutions. At this point, we are having trouble as a society recognizing our problems, much less solving any of them. But absent a properly funded professional press — one that covers the civic bureaucracies with constancy and tenacity, we’re going to have even less of a shot going forward. Again, this particular policy change that has done such damage to the investigative deterrent in Baltimore occurred almost a year ago. The Baltimore Sun was able to report at points on the complaints of detectives against the new policy, some of whom have been frustrated getting cases charged.  But the net effect — the fact that the number of murder defendants had been halved by the new policy went unaddressed.  And the implications of all this — as detailed above — haven’t been fully reported. Again, The Sun still has some hard-working, committed folk, but they are younger and fewer, and they are spread thin across a civic firmament that is, if anything, even more complicated, more self-protecting, and more entrenched.

As for the blogosphere, it just isn’t a factor for this kind of reporting.  Most of those who argue that new-media journalism is growing, exploding even, in a democratic burst of egalitarian, from-all-points-on-the-compass reportage are simply never talking about beat reporting of a kind that includes qualitative judgment and analysis. There’s more raw information sure. And more commentary. And there are, for what it’s worth, more fledgling sites to look for that kind of halfway-there stuff. Usually, such sites are what folks point at and laud when they argue that the bulldozing of mainstream media can proceed without worry. At one point last week, I noted a comment on a journalism website in which a new-media advocate pointed out that local websites were perfectly capable of printing the details of every murder as they occurred — as if such a feat undertaken by so-called citizen journalism isn’t mere accounting, but something on the level of real reportage.

Beat reporting — and the beat structure of a metropolitan daily — is what is dying here. Absent a fresh online revenue stream, newspapers can no longer sustain veteran reporters on institutional beats the way they once did; not in the numbers necessary to keep bureaucracies honest. And the blogosphere? Good luck. The day that a citizen journalist can summon the sources, patience, clarity and tenacity to uncover such back-room machinations, to sort and filter the implications and then land a careful critique of the dynamic — well, that will be the day that he or she has spent two or three or four years covering that institution or agency. In this case, that means two or three years of drinking beer in cop bars and taking prosecutors to lunch and saving home numbers of whichever disgruntled police commanders are willing to talk about the dirt. And the day such a citizen journalist devotes that much time to such a crusade, I’m willing to bet it’s because someone is paying them an honest wage to go to work every day. Which makes that person not a citizen journalist at all, but a professional reporter; which brings us more or less right back to the world that the internet supposedly vanquished.