The Kathryn Johnston Indictments: A Good Start. A Long Way to Go.

How to win real reform in Atlanta.


When 88-year-old Kathryn Johnston was shot and killed by Atlanta narcotics officers last November, it had all the trappings of your typical drug raid gone wrong. Critics (like me) cautioned Atlanta officials to use Johnston's death to spur real reform in the investigation and policing of drug crimes, and to avoid what other cities have done in the wake of such tragedies: express regret and remorse, promise changes, then return to doing things the same way they've always been done.

Nearly three months later, Atlanta is showing some encouraging signs. Last week, Fulton County District Attorney Paul Howard announced a series of tough charges against the officers who conducted the raid on Johnston's home, including felony murder. And in today's Atlanta Journal-Constitution, city Police Chief Richard Pennington and Christopher Stone, a criminal justice professor at Harvard, have called for the city to set up a civil rights commission with subpoena power to look into police excesses.

There are two issues at stake in the Johnston raid, and it's important to separate them. The first is the behavior of the individual narcotics officers, who according to reports invented an informant, then pressured an informant used on other cases to lie to cover their mistakes. If true, their behavior is obviously an aberration, and ought to be punished.

The other issue goes to the very heart of drug policing. Yes, the officers' behavior in this case was atypical. But they operated within an all-too-common criminal justice system in Atlanta that gave them room to maneuver. There is a troubling lack of accountability, transparency, and misplaced priorities and incentives with drug policing. Kathryn Johnston's death was tragic, but it was also foreseeable, just the latest in a long and tired series of needless tragedies.

Johnston's family was actually upset by the announcement last week that the officers had been indicted by Fulton County. They fear the charges will interfere with a broader investigation now underway by the FBI and U.S. attorney's office.  Some in fact have suggested that the indictments are a way for the DA's office to stave off any investigation into its own conduct in the prosecution of drug warrants. FBI investigators seemed to confirm Johnston's family's angst when they announced that the indictments were a surprise, and may impede the federal investigation.

It's also true that while the Johnston raid seems to have been the handiwork of a few rogue, malevolent narcotics officers, there are also systemic failures in Atlanta's criminal justice system that gave the bad apples room to operate, and allowed Johnston's death to happen. In March 2005, for example, there was a remarkably similar raid on the home next door to Johnston's. Like the Johnston raid, that raid involved a phantom informant, a "no-knock" entry, and turned up no drugs or arrests (the Johnston raid allegedly turned up a small amount of marijuana, but there are doubts about its origin). It also involved several of the same narcotics officers that raided Johnston's home. Unlike the Johnston raid, however, none of the officers were disciplined.

One of the officers involved in the Johnston raid, Officer Arthur Tesler, was also recently reprimanded for lying in a police report about the details of a traffic accident involving his police cruiser. He was allowed not only to keep his job, but to conduct narcotics investigations, where a police officer's word alone is often enough to secure a high-risk no-knock search warrant.

A broad investigation, then, should look at why that prior raid on the home next to Johnston's wasn't properly investigated. When a no-knock warrant—which is supposed to more difficult to obtain than a normal search warrant—turns up no drugs or arrests, alarm bells ought to go off, if not for reasons of accountability and professionalism, then for the fact that an innocent citizen was needlessly terrorized. Why was there no investigation?

It should also look at the judges who sign off on forced-entry warrants. They're supposed to be guardians of the Fourth Amendment, not (literally) rubber stamps. Why did the city magistrate approve a no-knock warrant for Johnston's home just twenty months after the house she shared a driveway with was wrongly raided—by many of the same officers making the same claims?

A recent Associated Press review of all the no-knock warrants granted in Fulton County in 2006 found that "authorities often give scant detail when applying" for them. In some cases police gave no evidence at all. There were times, the AP reports, when "officers only detailed their years of experience with the police force as justification for no-knock powers." And yet the judges still signed off.

A thorough investigation into the circumstances leading to Kathryn Johnston's death should also take a hard look at how informants are used in drug policing. While it's true that in some jurisdictions, informants are registered and evaluated, and their track records are properly scrutinized, in many others, there's little or no oversight at all. That appears to be the case in Atlanta. Informants are also typically given complete confidentiality. Defense lawyers can't question them. Even in the case of botched raids were an informant's tip led to the wrong address, courts have kept the informant's identity secret from plaintiff's lawyers in subsequent civil rights suits. Many times, judges don't even know their identities. All of this puts undue reliance on the word and judgment of narcotics officers.

This isn't to say that all or even most narcotics officers are as dishonest as the officers involved in the Johnston raid. But it is indicative of a system unconcerned about catching the few who are. And even an honest officer can misjudge an informant's trustworthiness. One police officer's judgment alone shouldn't be enough to instigate an action as violent and confrontational as a forced-entry raid.

Finally, a serious inquiry into Johnston's death should take a critical, sweeping look at the fundamental nature of drug policing. The Atlanta Journal reported last month that a misguided focus on arrest numbers and stacking statistics have led to low morale, short-cutting, and conducting high-stakes raids resulting in paltry amounts of contraband. The lure of a big bust, as was promised by the real informant in the Johnston case (a suspect arrested on other charges who said police would find a kilogram of cocaine in Johnston's home) can make a career, tempting officers to cut corners.

A proper look into Johnston's death, then, wouldn't end with the lying narcotics officers. It would include criticism of the entire culture of the city's drug policing. It would include criticism not just of the police, but also of prosecutors and judges. It would reevaluate long-standing policies on the proper way to conduct a drug investigation. And it would ask tough questions about the goals, priorities, and very nature of drug policing.

To their credit, the Johnston family is calling for precisely that kind of sweeping review. "This family doesn't want vengeance," family spokesman Rev. Markel Hutchins told the Atlanta Journal. "The violations that happened had little to do with police personnel and more to do with policy."

Thing is, it's doubtful that kind of reform will come from either a local or a federal investigation. The Johnston family is probably right to assume that the Fulton County DA's office lacks the detachment and authority it would need to investigate colleagues, superiors, judges and even its own conduct in prosecuting drug crimes. But it's doubtful that federal investigators will do much beyond addressing the conduct of the individual officers, mostly because it isn't their job to make policy. Even if it were, the same federal government that raids medical marijuana clinics and prosecutes pain specialists isn't likely to come back with recommendations for sweeping drug policy reforms.

When 57-year-old Harlem resident Alberta Spruill was killed in a botched drug raid after a bad tip from an informant in 2003, the city of New York faced many of the same questions Atlanta faces today. Despite public outcry, a rash of media stories and investigations, and promises from the city to change its ways, it wasn't long before police were knocking doors off their hinges, and new reports of "wrong address" raids again popped up in the newspapers.

If Kathryn Johnston's death is going to be a watershed moment in the way Atlanta conducts its drug policing, the city will have to do better than New York (and, frankly, just about every other city in the country). Reforms need the teeth of enforcement mechanisms, the accountability that comes with transparency, and they need to grant review boards broad jurisdiction and subpoena powers. These reforms will have also to come from policy makers, at the insistence of their constituents. Advocates will have to see them through to implementation without losing interest, or developing outrage fatigue.

Anything less, and within months it will be back to business as usual.

Radley Balko is a senior editor of Reason.