Promoting civil rights through proactive policing reform.

• Jurisdiction: United States
• Author: Harmon, Rachel A.
• Date: 01 December 2009

INTRODUCTION I. ORIGINS AND ENFORCEMENT OF SECTION 14141 A. The Origins of Section 14141 B. How Section 14141 Works II. PROMOTING PROACTIVE REFORM USING SECTION 14141 A. The Possibility and Benefits' of Proactive Reform B. Raising the Expected Cost of Misconduct 1. Obstacles to raising the expected cost of misconduct 2. Concentrating resources on the worst departments 3. Determining which departments are worst C. Increasing the Benefits of Reform 1. Why a safe harbor mechanism is useful 2. How a safe harbor works D. The Costs of Inducing Rather than Compelling Reform E. Section 14141 Enforcement and Agency Costs F. Lowering the Costs of Reform III. ASSESSING STRATEGIES FOR ENFORCING SECTION 14141 A. Evaluating Section 14141 Enforcement So Far 1. The expected costs of misconduct and benefits of reform 2. The information costs of reform B. Assessing Proposals to Amend or Replace Section 14141 1. Adding private plaintiffs to section 14141 2. Adding fines to section 14141 3. Replacing section 14141 with alternative means of inducing reform CONCLUSION INTRODUCTION

Much police misconduct is not accidental, incidental, or inevitable. Instead, it is systemic, arising out of departmental deficiencies that undermine officer adherence to legal rules. When a police department resists public feedback, provides inadequate training and policy guidance to officers, or disciplines laxly those who violate legal rules, it facilitates--even encourages--law breaking. Countering the systemic causes of police misconduct requires doing more than punishing individual officers. It requires structurally changing police departments that permit misconduct in order to create accountability for officers and supervisors and foster norms of professional integrity. (1)

Federal law has long prohibited some kinds of police misconduct and has empowered governmental and private actors to enforce those prohibitions. Yet, unfortunately, the traditional federal legal means of regulating police officer conduct--federal criminal prosecutions, civil suits for damages under 42 U.S.C. [section] 1983, and the exclusionary rule--promote departmental reform only weakly. (2) One alternative to these remedies, structural reform litigation, has been a primary legal tool for inducing public institutional change in other civil rights contexts--such as changing segregated schools or improving unconstitutional prison conditions. But litigation seeking equitable relief against police departments has frequently foundered on standing requirements and similar legal obstacles. (3) As a result, structural reform litigation has played a marginal role in promoting reform in law enforcement agencies. (4) In sum, traditional legal tools do not spur widespread change in pathological police departments.

In the mid-1990s, Congress passed 42 U.S.C. [section] 14141 in an effort to remove some of the barriers to structural reform of police departments. (5) Section 14141 authorizes the Justice Department to bring suits for equitable remedies against police departments that engage in a pattern or practice of unconstitutional police misconduct. Initially, legal scholars hailed [section] 14141 as a significant achievement in the battle against police misconduct because it expressly authorizes lawsuits that could force institutional changes on police departments. Since then, however, enthusiasm has waned. A consensus has emerged that, hampered by limited resources and inadequate political commitment, the Justice Department has brought too few cases. (6)

The Obama Administration represents new hope for those interested in widespread policing reform. Political commitment to enforce [section] 14141 is likely to increase, and that commitment may produce a concomitant devotion of resources. Although this is exactly what prior scholarship implies is necessary to improve [section] 14141 enforcement, these changes alone are unlikely to make more than marginal improvements in the effectiveness of [section] 14141 at reducing police misconduct. Even with new interest, funding for [section] 14141 actions will unquestionably remain limited. If any significant number of the nation's large police departments are structurally deficient, the Justice Department is unlikely--under the Obama Administration or any other--to have sufficient resources to investigate and sue every problematic police department. Instead, additional resources will allow only a few more suits each year. (7) Thus, using [section] 14141 to achieve direct reform is inevitably a limited enterprise. To achieve more significant reform, the Obama Administration must improve as well as enlarge the government's efforts to reduce systemic misconduct.

This Article proposes a new approach to [section] 14141 enforcement, one that overcomes the limits of direct reform by inducing departmental reform as well as compelling it. The Justice Department can induce reform in police departments that are engaged in substantial misconduct, even if it does not sue them, by making the proactive adoption of reforms a less costly alternative for these departments than risking suit. This strategy seeks to leverage whatever Justice Department litigation resources exist to motivate problematic departments to adopt recommended reforms without incurring the costs to the Justice Department of additional suits. Since the Justice Department can induce and monitor reform in more departments than it could otherwise sue, incentivizing reform in this way--rather than solely by coercing it department-by-department through [section] 14141 litigation--is a more efficient means of attacking systemic police misconduct. Thus, this Article argues that the Justice Department can best use [section] 14141 to reduce police misconduct by implementing a regulatory and litigation strategy that maximizes the rate at which police departments proactively adopt cost effective reforms. Even if the Justice Department has resources sufficient to sue only a few departments each year, it can use those resources to create a [section] 14141 policy that provides sufficient incentives for many more departments to reform.

In order to induce police departments to reform prior to being sued under [section] 14141, the Justice Department must make the net expected cost of reform less than the net expected cost of misconduct for those departments. The Justice Department can change the calculus of police departments in three ways: (1) it can raise the expected cost of a [section] 14141 suit for a department by raising the probability that the department will be sued; (2) it can increase the benefits of proactive reform for a department; and (3) it can lower the costs of adopting proactive reform. To achieve these ends for departments that most need reform, the Justice Department should adopt a three-pronged [section] 14141 enforcement policy.

The first prong requires the Justice Department to adopt a "worst-first" policy that prioritizes suing the worst large departments. Such a policy raises the expected costs of a [section] 14141 suit for the worst departments in the nation by raising the probability of suit for those departments. This requires a radical change in how the Justice Department approaches enforcing [section] 14141. Instead of deciding which departments to target under [section] 14141 simply by reacting to complaints, the Justice Department itself must be proactive: it must identify the worst departments and pursue them. Doing so requires a vision of [section] 14141 that is more like regulation than traditional public civil rights enforcement. It also presupposes the creation of a new national database on police misconduct through which the Justice Department can identify the worst departments.

Collecting national data is no less essential for assessing and improving the efficacy of the Justice Department's current [section] 14141 enforcement policy than it is for implementing the proposal advanced here. Any effective effort to reduce systemic police misconduct nationwide requires data sufficient to estimate where misconduct exists, how departments compare in their levels of misconduct, and what the effects are of different departmental reforms on misconduct over time. No such data currently exist. (8) As a result, existing [section] 14141 enforcement is reactive and haphazard rather than proactive and systematic. Without the most basic empirical tools, the Justice Department cannot set priorities intelligently. Rather, it necessarily chooses its targets without regard to how the misconduct in those departments compares to that of similar departments, and it therefore uses its limited resources inefficiently. For this reason, whether or not the Justice Department adopts the proactive approach this Article recommends, Congress should grant the Justice Department authority to issue regulations requiring large police departments to collect and report essential data in a uniform manner. But once such data are collected, the Justice Department can do better than merely to improve existing enforcement choices; it can use the data to make [section] 14141 enforcement significantly more effective.

The second prong requires the Justice Department to announce a "safe harbor" policy. Such a policy would shield from investigation or suit any department that officially commits itself to adopting proactively a preset array of reforms and then makes substantial, verifiable progress toward their implementation. A police department that receives the safe harbor would avoid the litigation costs associated with a [section] 14141 suit. In addition, the set of reforms that a department would be required to adopt in order to receive the safe harbor, though still beneficial, would be less extensive and costly than the reforms imposed as a result of a suit. The safe harbor policy would therefore raise the net expected benefit of proactively adopting reforms.

The safe harbor mechanism is critical...