Updated on April 27, 2016, at 10 p.m.
There’s nearly bipartisan consensus these days that something has gone wrong in the relationship between police and the public in the United States.
Shootings of unarmed people, videos of excessive force, and massive protests from coast to coast attest to the problem.
But recognizing the problem is different from solving it. How can communities across the U.S. improve police accountability?
The obvious place to start is to dig into the data and get a better understanding of the scope of the problem—anything else risks missing the point.
That’s a logical conclusion, but where are you going to get that data? The lack of reliable information on policing has been a major hindrance to discussions.
For example, how many people do the police shoot every year? No one knows. Forget trying to figure out how many of those were unarmed, or what the demographic breakdown of the the people they shot was. There’s a law on the books that purports to gather the relevant information, but it doesn’t work. It requires states to gather information and uses federal grants as a carrot. But the incentive doesn’t work, in part because states often don’t have the requisite information at their disposal—only local police departments do.
“It’s ridiculous that I can’t tell you how many people were shot by the police last week, last month, last year,” FBI Director James Comey said last spring. The lack of decent stats led both The Washington Post and The Guardian to mount data-collection efforts, and in December 2015, the FBI announced it would try to create a more effective data-gathering effort. That won’t start until 2017, though.
Okay. Well, in the meantime, prosecutors need to do a better job of holding police who break the law accountable through strict prosecution.
How much real ability do district attorneys and prosecutors have to solve the problem? Attempts to prosecute cops encounter a whole range of issues. It’s true that a vanishingly small number of deaths in police hands result in criminal charges, and a smaller number still result in convictions. (Of course, deaths are only a tiny share of cases where police are subject to allegations of misconduct. They’re just slightly easier to track.)
Because the police are essential to every criminal case—as witnesses and as investigators—a prosecutor who wants to go after a cop is risking alienating the very officers she relies on in every other case. Even setting all that aside, grand juries and juries alike are often reluctant to second-guess police and so decline to indict or convict. The Freddie Gray case, in which Baltimore City State’s Attorney Marilyn Mosby aggressively pursued charges against police, is a cautionary tale. Though she won praise for bring charges, the first case resulted in a hung jury, and the rest are currently in limbo.
If local prosecutors are unwilling or unable to deliver accountability, then the Justice Department will have to be the enforcer.
Does the federal government intervening with local police departments provide a good path to reform? Yes and no. Justice Department lawsuits have forced police departments around the country to clean up their acts—from Seattle to Puerto Rico and Cleveland to New Orleans. The DOJ offers a great deal of heft, and while it’s certainly not immune to political pressures, it is insulated from local politics.
Justice Department lawsuits have their own limitations, though. While they have been praised for the their effectiveness in identifying systemic abuses—the DOJ investigation into the police in Ferguson, Missouri, was a stunning chronicle of malfeasance—they’re less effective at dealing with specific cases. Hopes that the DOJ would prosecute Officer Darren Wilson for killing Michael Brown overlooked the high standards required for a federal civil-rights case. Even when DOJ is able to procure strong agreements, it sometimes finds itself returning again before too long when departments fail to clean up their acts. Meanwhile, the recent focus on police abuse has nearly overwhelmed the unit in charge of police accountability.
Victims can always file civil suits against police. Lots of victims and their families have procured huge settlements.
Do civil lawsuits promote better practices within police departments? The evidence is varied. Baltimore is instructive again. The city paid out millions in cases involving police over several years, but often the costs just get passed on to taxpayers, while departments resist reform—producing incidents like Freddie Gray’s death. A 2012 paper by UCLA Law Professor Joanna Schwartz found that some departments have been proactive about using civil settlements as a metric for improving their departments, but her research didn’t cover all departments, and as she notes in the paper, lawsuits are an imprecise tool. They are slow, highly situations-specific, and tough to bring unless lawyers think they have a slam-dunk case. The impact of lawsuits can also depend on whether cities have outside insurers—who are likely to press for reforms to lower payouts—or self-insure, which reduces the incentives. Besides, is a civil suit any substitute for a functioning criminal-justice system?
Police immunity laws are the problem there.
Are immunity laws really a major part of the picture? The Supreme Court recognizes “qualified immunity” from lawsuits for officers doing their jobs. If something they do doesn’t violate clearly established law or constitutional rights as far as a reasonable person would understand them, officers can’t be sued. Critics have brought up examples where qualified immunity could be wisely trimmed—for example, cops who violated department procedures might lose it—but immunity is both constitutionally guaranteed and doesn’t seem to be one of the biggest issues constricting police accountability, anyway.
Forget the justice system—there are good ways to prevent things from going wrong in the first place. Body cameras seem like a great use of technology to create accountability.
Body cams are all the rage in police-accountability discussions, but are they the sweeping solution some people would suggest? There have been some very promising cases of body cams producing prosecutions, but there are plenty of others where footage has made little difference (like Eric Garner’s death).
First, there’s still not a great deal of data about how they affect police behavior. Early results were generally promising, but inconclusive. More recent studies have suggested that there are fewer complaints and fewer violent incidents when police wear cameras, but the data is still sparse.
Skeptics see body cameras as similar to previous supposed policing panaceas. Granting that they can make a difference, however, body cameras bring up a host of other issues in implementation. When should cameras be filming? Who stores the film, for how long? Who should have access to footage?
Departments rot from the top. There needs to be civilian leadership or review to keep a check on cops.
How effective is civilian leadership on its own? Many cities have instituted or considered some sort of civilian oversight of the police, with the specifics taking many different shapes. The Justice Department has sometimes mandated more civilian involvement in police-complaint procedures when it sues cities.
But here, too, the details make all the difference. Even when outside a police department, civilian overseers are subject to regulatory capture. Chicago has an Independent Police Review Authority that’s housed outside the police department and staffed by civilians, but the board has come in for withering criticism in the wake of the Laquan McDonald shooting and other incidents, where it appears to have swept abuses under the carpet and doled out minimal punishment.
Police are just too removed from the community. If they spent more time on the beat talking to citizens, they would behave better.
How much difference does “community policing” make? Once again, it depends. Cincinnati has been hailed as a paragon of police reform since the Queen City overhauled its department after riots in 2001. One of the keystones of that effort has been better community involvement. Elsewhere, though, the results are mixed. Where community-oriented policing means just putting more cops on the beat without other reforms, it risks escalating situations, rather than defusing them. In the first trial related to Freddie Gray’s death, Officer William Porter testified that he knew Gray well and that they enjoyed “a mutual respect.” That didn’t prevent Gray’s death.
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The new focus on police reform and accountability is delivering not only improved data and more focus on solutions like these. It’s also awakening interest in a whole set of new policies that are less explored.
Can improved and overhauled training of police cadets prevent serious problems once they’re on the force?
Would recruiting more diverse police forces that better reflect the communities they serve reduce tension?
Can implicit-bias training avoid racially disparate results in policing?
Would U.S. police forces be well served by following the British model of not arming police with firearms?
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