Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-driven Surveillance

• Publication year: 2021

PANOPTICISM FOR POLICE: STRUCTURAL REFORM BARGAINING AND POLICE REGULATION BY DATA-DRIVEN SURVEILLANCE

Mary D. Fan(fn*)

Abstract: Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police-and the groups threatening to sue the police-are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and farther-reaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision.

This Article argues that the remedies being fashioned "off the books"-that is, outside the doctrine in the case law reporters-offer important insights for the future of police governance and reform. The primary engine of police regulation-the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence-is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance-what this Article dubs "panopticism for police." Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham's Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of "conscious and permanent visibility" reduces monitoring and remedial costs and triggers self-regulation and institutional culture change.

INTRODUCTION..................................................................................94

I. MAIN ROUTES FOR PENETRATING POLICE OPACITY.....104

A. Path-Opening: 42 U.S.C. § 14141........................................106

B. Purse Power: Crime Control and Safe Streets Act and Title VI ................................................................................. 110

C. A Winding and Widening Path: 42 U.S.C. § 1983 ............... 112

II. COOPERATIVE REFORM IN LAW'S SHADOW .................... 116

A. An Invitation to Bargain ....................................................... 117

B. On Institutional Reform Rather than Law Reform ............... 120

C. The Virtues of Collaborative Reform (Despite Legal Stasis) ................................................................................... 121

III. LESSONS FOR THE FUTURE OF POLICE GOVERNANCE AND REFORM ............................................................................. 124

A. The Search for Alternatives and the Potential of Regulation by Information ................................................... 125

B. Optimizing Police Panopticism ............................................ 130

CONCLUSION .................................................................................... 136

INTRODUCTION

New Jersey police supervisors review on a random-selection basis videos of traffic stops and require officers to report the race of people stopped and searched pursuant to a consent decree.(fn1) Los Angeles police are required by consent decree to complete a written or electronic report for each incident where force was used and for each investigative stop documenting the subject's "apparent race, ethnicity, or national origin," the reason for the stop, and whether a search was conducted.(fn2) Stratified random samples of the reports are regularly audited through a procedure that includes "an examination for 'canned' language, inconsistent information, lack of articulation of the legal basis for the applicable action" or other reporting problems.(fn3) Wallkill, New York, police are now obliged by consent decree to "document their activities while on duty and in a form that will allow monitoring of such activities to take place" through methods such as a daily log and documentation of stops.(fn4) Detroit police are overseen by a monitor to ensure implementation of a consent judgment that, among other things, establishes a risk management database to track officer conduct and requires setting thresholds for red flags that trigger supervisory review to detect potentially problematic officers.(fn5)

These are just a few examples of institutional reform of police practices in recent decades.(fn6) Before instituting reforms, these jurisdictions and others in similar straits struggled with allegations such as excessive force, harassment, and disproportionate targeting of minorities by the police.(fn7) Civil rights investigations and, in some cases, lawsuits followed.(fn8) Changes ultimately were not wrought by judicial mandate.(fn9) Constitutional criminal procedure doctrine-customarily perceived as the main code of conduct regulating police(fn10)-did not grow new branches to prescribe reform. Claims concerning the need to check the police were not filtered through the distorting lens of a criminal case with a defendant seeking to exclude evidence from the jury. Rather, the reforms stemmed from structural reform bargaining between litigants outside the courthouse that produced consent decrees-negotiated agreements between parties in the form of a court order stipulated between the parties(fn11)-or memoranda of agreement-less formal agreements that typically provide for judicial enforcement in the event of a breach.(fn12)

These negotiated reforms typically came in advance of any judicial involvement or finding of unconstitutionality.(fn13) This distinction is important because some of the most famous and controversial forms of negotiated reforms-consent decrees-have frequently come after judicial findings of constitutional violations or probable violations, forcing the adoption of reforms.(fn14) Such controversial consent decrees, familiar from contexts such as school desegregation, social services provision, and prison reform litigation, are sometimes decried as undemocratic because they embroil courts in dictating change and setting policies in areas that courts are ill-equipped to investigate and supervise.(fn15) In contrast, this Article is focused on cooperative bargaining that leads to reform forged by police departments and civil rights organizations in advance of any judicial findings of unconstitutionality, without the prodding and intervention of judicial legal interpretation. Such structural reform bargaining typically results in memoranda of agreement prefaced with the sweetener of praise for the police department's cooperation in seeking solutions to alleged problems, though more formal consent decrees also occur.(fn16)

This Article begins with the insight that the real engine of police reform increasingly is not found in the formal criminal procedure doctrine. The exclusionary rule-oft-described as the principal remedy and basis for deterring police misconduct(fn17)-is slipping as the main lever of police deterrence despite its starring role in criminal procedure jurisprudence.(fn18) Civil rights suits against the police are no longer the chimerical alternative for redressing undesirable police practices.(fn19) The most important actor for prescribing rules regulating police practices is shifting from the judiciary, clumsily wielding constitutional doctrine to manage the police, to politically attuned agencies and civil society.(fn20) Nonjudicial actors, including prominently the United States Department of Justice and civil rights organizations, are collaboratively crafting remedial and governance regimes in the shadow of law and police department investigations.(fn21)

Police departments across the nation are coming under scrutiny and participating in collaboratively calibrated and institutionally tailored reform.(fn22) Close to home in Washington State, for example, the Justice Department recently launched an investigation to determine whether the Seattle Police Department has engaged in a pattern or practice of excessive force and racially biased policing after controversial incidents surfaced involving uses of force against people of color.(fn23) The revelation of a Justice Department investigation spurred the Seattle Police Department to announce "a complete revamp of how the department develops professional standards and expectations" before any findings from the investigation and in advance of any litigation.(fn24) Scrutiny was sufficient to spur self-regulation and reform without resort to cumbersome litigation and judicial micro-management. These shifts are instructive for the future of how American police will be regulated and the nature of remedies available for civil rights concerns.

Formal criminal procedure jurisprudence...