Can States Tackle Police Misconduct With Certification Systems?

One researcher argues that issuing professional licenses to law enforcement improves the oversight of local departments.

Adrees Latif / Reuters

Criminal prosecutions against police for acts of force in the line of duty are rarely successful. Two years ago this month, 25-year-old Freddie Gray died from a neck and spinal injury he sustained while under arrest in Baltimore, Maryland. Six officers were charged—with violations ranging from misconduct to what’s known as “second-degree depraved-heart murder”—but ultimately, none were convicted. The officers were permitted to handle administrative work pending an internal investigation by the Montgomery County Police in Maryland, the results of which are protected by privacy laws.

Yet despite the resulting public outrage, this outcome is not surprising. “The legal system doesn’t like second-guessing police officers, because they know the job is hard and violent and they have to keep bad guys off the streets,” a criminologist told NBC News after charges against the Baltimore police were dropped. But one proposed way to work around the courts—and police departments—to address serious misconduct is through the issuance of professional police licenses that can be revoked by the state.

Roger Goldman, a law professor emeritus with Saint Louis University in Missouri, researches ways states can issue these licenses and adopt systems that would decertify officers after instances of serious misconduct, a descriptor that varies from state to state. Without such a system in place, he argues, an officer could be fired in one department and easily rehired by another nearby. For states that already have a system, Goldman advises them on improving the standards required for officers to maintain their certification.

Efforts to certify police officers at the state level may soon receive more attention, as the Justice Department considers backing off Obama-era measures to monitor local police departments. Former President Barack Obama’s Task Force on 21st Century Policing recommended expanding efforts to track decertifications nationwide. But the future of that proposal is uncertain with the new administration’s takeover. Goldman said reports this week that Attorney General Jeff Sessions ordered a review of his department’s consent decrees with troubled police departments suggest that state legislatures may bear more responsibility in the coming years in pushing for local reform.

To learn more, I recently spoke with Goldman about his research and his views of the Trump administration. Our conversation has been lightly edited for length and clarity.

Candice Norwood: I read a piece you wrote for The Guardian about the importance of professional state licenses for police. Why do you feel licensing specifically is so important to implement?

Roger Goldman: First of all, it’s well understood. If you think of the hundreds of other occupations and professions at the state level—doctors, lawyers, architects, you name it—[that require licenses], and yet we don’t traditionally think about doing something like that for police. When you think about licensing as a way to protect the public, then of all the professions that ought to be licensed, we should require law enforcement to meet those same professional standards—if not tougher standards.

Norwood: And what is the current state of licensing throughout the country? The majority of states have a certification program for police officers, correct?

Goldman: Correct, around 44 states have it. The rough estimate of the total number of officers who have been decertified, meaning they cannot be an officer in that state anymore, is about 30,000. That seems like a big number, but this has been going on since the late ’60s. And the states differ so much. So, for example, three states—North Carolina, Florida, and Georgia—account for about half of all those decertifications. I don’t believe the police officers in those states are any better or worse than others. It just shows that these states have very active decertification programs.

Some states that have decertification programs may have only done 10 in their history. Florida has done about 7,000 decertifications. There are huge variations, and it typically results from the way the [certification] statute is written. For example, if an officer can only be decertified for a conviction of a felony or serious misdemeanor, then there won’t be that many decertifications in that particular state. But for most other professions, we don’t say that someone can only lose their license if they’ve been convicted of a crime. No, if they’ve committed certain kinds of misconduct, whether they’re convicted or not, they’re going to lose that license.

Norwood: That’s an interesting challenge. So even if states have a certification system, they don’t necessarily have strong requirements that would actually result in decertification.

Goldman: Absolutely. That’s why my work continues to be not with just states that don’t have the certification systems—like Massachusetts, California, Hawaii—but also with states that have a system but it’s very weak—like Maryland.

And the states I mentioned that don’t have decertification systems are very blue states. That should be an indication that the opposition is going to come from police union officials. Typically, states that have weak decertification laws will also have very strong protections for police. California is interesting. They used to have the power to “cancel,” which is the same thing as decertification. In 2005 or so, the legislature revoked that power. So California is the only state that’s gone in the opposite direction—from having a certification system to not having one.

Norwood: Your research also touches on another big issue in this discussion, which is when police officers—who are either fired or have resigned after instances of misconduct—then find work in another department. This could be within the same state or in a different state. How pervasive is this?

Goldman: In my research, I’ve seen it happen a lot within St. Louis County.

There are many cases around the country where officers leave their departments because of misconduct and then they are rehired—sometimes knowingly, sometimes not—by other departments. This is why you cannot leave it up to local departments to do the right thing. They are going to hire officers with bad records because they can get them at a discount. These officers have had their training. That’s why you absolutely need to have the states come in and prevent this sort of thing from happening.

Norwood: So let’s talk about the federal level. In one of your papers you discuss the limitations of the federal oversight of local police reform. Can you tell me more about that?

Goldman: Now, this was published before Jeff Sessions became attorney general. The overall point I would make is that there are traditional federal remedies for police misconduct. But if the new administration is going to back off of these remedies—such as the consent decrees—then it becomes even more important to have strong state solutions, too, such as the certification systems.

So specifically, regarding the remedies at the federal level: Federal courts operate something called the “exclusionary rule,” which excludes evidence obtained by police in violation of a defendant’s constitutional rights. But it’s pretty clear the Supreme Court is backing off enforcing that rule over the last several years. Other federal remedies include suing an officer who commits misconduct for damages, or criminally prosecuting that officer. But criminal prosecution is pretty heavy-handed, and it is very hard to win those cases at all. Civil suits can be successful, but still don’t address the issue of removing an officer from the force. Those are reasons why a state certification program could be a way to make sure this person cannot stay on the job. It’s not one versus the other; federal and state remedies can act in tandem toward police reform.

Norwood: And where do you see these efforts going from here with the new administration and Jeff Sessions as the attorney general?

Goldman: It’s difficult to say what Sessions will do because he hasn’t discussed this area of police reform. President Obama’s Task Force on 21st Century Policing recommended a database that would track when officers have been decertified, so that if they go to another state that information would be available. At the moment we don’t know whether the Justice Department under Sessions will pursue that recommended expansion. Currently a databank, the National Decertification Index, exists for this purpose, but only 41 states participate and it’s based on voluntary submissions, rather than federally mandated.

I believe when you focus on the idea of police professionalism, it is very hard to argue against that. So I’m optimistic that when correctly presented, Sessions would not want to have officers who are sexually harassing and so forth. But I have to tell you I’m an eternal optimist.

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