The Challenge of Deterring Bad Police Behavior: Implementing Reforms that Hold Police Accountable.

AuthorBloom, Robert M.


Systemic racism in the United States is pervasive. It runs through every aspect of society, from healthcare to education. Changing all of the parts of society touched by racism is necessary; however, this Article does not provide a cure for systemic racism. It seeks to address a byproduct of this racism: police brutality. Over and over, headlines broadcast the deaths of Black Americans at the hands of the police-why has nothing changed? This Article argues that meaningful reform requires trust in U.S. law enforcement, which can only be achieved by holding police accountable and deterring misconduct. To do so, this Article proposes reconsidering police licensing to guarantee more third-party, unbiased oversight.


"[C]hange has been too slow. And we have to have a greater sense of urgency about [police reform]." (1)--President Barack Obama

"We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality." (2)--Dr. Martin Luther King, Jr.

Racism in the United States is and always has been systemic; from housing to healthcare, racism permeates all parts of U.S. society. (3) In its 1968 report, the National Advisory Commission on Civil Disorders, colloquially referred to as the Kerner Commission, determined that "white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it." (4) For the entire history of this country, white society's role in discrimination against Black Americans has been clear. Some improvements have been made but certainly not enough. In 1985, the U.S. Government released the "Report of the Secretary's Task Force on Black and Minority Health," which determined that inequities in healthcare were responsible for 60,000 deaths of Black citizens per year in the United States. (5) Today, Black women are three times more likely to die in childbirth than white women. (6) In addition, the 2020 COVID-19 crisis has revealed further racial inequities in the healthcare system. (7) Black people in the United States are three times more likely to be infected by the coronavirus than white people; in addition, Black individuals are almost two times as likely to die from COVID-19 than white individuals. (8) These racial differences exist in big cities, like New York City, and suburban areas, such as Fairfax County, Virginia. (9)

Disparities do not exist only in healthcare. (10) In 1934, Congress passed the National Housing Act, offering government mortgages to those in good financial standing--so long as they were white. (11) In the 1960s, Congress passed the Fair Housing Act, (12) which aimed to right the wrongs done to Black Americans under the National Housing Act; unfortunately, segregation and disparities still exist today in U.S. housing. (13) Because the Fair Housing Act failed to fix the segregation of neighborhoods and other forms of racial control evolved, today housing is still significantly segregated, perpetuating racial inequities and oppression. (14) Although legal segregation has ended, discriminatory zoning and mortgage lending practices, "redlining," and other racially discriminatory practices still exist. (15)

Remnants of segregation still implicate education in the United States, even after many believed Brown v. Board of Education (16) fixed the system. Today, approximately two-thirds of minority children learn in schools that serve a majority minority student body. (17) Because most public schools are funded by property taxes, schools in poorer locales with a majority of students of color have less resources "on every tangible measure," including quality of teachers and range of courses offered. (18)

Racism is a systemic issue; however, this Article will only focus on one aspect--how racism intersects with policing. (19) Prior to the Civil War, police departments, which often had their roots in slave patrols, sprung up across the United States. (20) Police departments were born to maintain control over Black Americans, and remnants of this initial practice remain in policing today. (21)

Following the Civil War, Congress ratified the Thirteenth Amendment to cement the abolition of slavery in the United States; although slavery was abandoned privately, the Thirteenth Amendment allows involuntary servitude "as a punishment for crime," creating a loophole for slavery in prisons. (22) Despite the promise of freedom within the Thirteenth Amendment, following its ratification Black Americans faced extreme marginalization and systemic inequities. (23) A number of states seeking to replace slavery enacted new laws, known today as "Black Codes." (24) Although proponents of these laws thought of them as mere criminal statutes, they were "poorly disguised substitutes for slavery," criminalizing Black Americans that attempted to work in certain jobs, restricting where Black Americans could live, requiring Black Americans to treat white people with deference, and more. (25) Importantly, police officers enforced these laws and others, including vagrancy laws, which granted police officers wide discretion to arrest individuals for vague crimes of loitering and being "suspicious." (26) Black individuals found guilty of violating a Black Code or vagrancy law found themselves on chain gangs, paying fines, or serving as unpaid servants on white-owned plantations. (27) Although tasked with protecting all Americans, police officers largely turned a blind eye to the violence Black Americans faced from the Ku Klux Klan and other white terrorist groups. (28)

Today, Black Americans unfortunately face many similar problems with the police as they did following the Civil War and during the Civil Rights Movement. Black Americans are three times more likely to be killed by police officers than white Americans. (29) In response to both the systemic racial inequities in the United States and the disproportionate number of Black Americans who die at the hands of the police, in 2013, following seventeen-year-old Trayvon Martin's death at the hands of a so-called concerned citizen, (30) the Black Lives Matter ("BLM") movement was created. (31) Although the impetus for the movement was the shooting of Black Americans by the police, the movement gained traction from the indignities, injustices, and many other manifestations of systemic racism. Since 2013, BLM has used its large, international platform to raise awareness of injustices occurring across the United States, including the murders at the hands of police of Eric Garner in New York City in 2014, Michael Brown in Ferguson, Missouri in 2014, Tamir Rice in Cleveland, Ohio in 2014, Freddie Gray in Baltimore, Maryland in 2015, and most recently, George Floyd in Minneapolis, Minnesota and Breonna Taylor in Louisville, Kentucky in 2020. (32)

In the wake of the 2020 BLM movement, people across the globe have called for reform of police practices and, more broadly, systemic racism. (33) Reforms range from banning chokeholds to completely dismantling and partially defunding American police departments in an effort to increase social services by allocating funds from police departments to these programs. (34) Although most of these reforms are needed and may improve policing practices, more must be done to actually deter the police and create trust of law enforcement in minority communities. This Article will review many of the reforms various cities and states have tried to address the problem of police brutality; in addition, this Article will suggest that meaningful reform requires police deterrence. (35) To accomplish this, it is imperative that neutral and detached adjudicatory bodies are able to punish and hold police officers accountable. (36)

Part I will look at the current state of policing in the United States. (37) We will look at the myriad factors inherent in most police forces that have allowed bad police officers to thrive. (38) Part II will provide an overview of Supreme Court jurisprudence that has not only failed to reign in police but has indeed encouraged bad acts. (39) Part III will explain that popular reforms, such as banning chokeholds and requiring body cameras, are insufficient to deter police because they do not shift the power of police accountability to an unbiased, third party. (40) Part IV will argue that meaningful reform requires cultivating trust in policing by mandating police licensing and granting licensing bodies considerable power to decertify officers. (41) In addition we will argue for less interaction between the police and citizenry, through decriminalization of petty crime. (42) Ultimately, this Article summarizes the challenges in obtaining meaningful police reform, and identifies viable solutions to the complex problem.


    In 1991, a bystander, using his camcorder, captured the brutal beating of Rodney King by four police officers from the Los Angeles Police Department ("LAPD"). (43) Although approximately twenty law enforcement officials were present at the beating, none of the officers intervened or submitted a report detailing the beating. (44) Had the video not existed, it would have been difficult for Rodney King to be believed, given the contrary testimony of the officers. (45) The advent of mobile phones and videos has documented what has been the culture of brutality in police departments, particularly against Black Americans, a constant in U.S. society since law...

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