Police misconduct—including racial profiling, excessive force, planting evidence, and lying under oath— has emerged as a major civil rights problem. What can the federal government do to respond? Which kinds of federal interventions are likely to succeed? How do principles of federalism limit the ability of the national government to respond to local police practices that infringe civil rights? Is there political momentum for reform? A forthcoming issue of the Illinois Law Review brings together the nation’s leading experts on policing to discuss and debate these important issues in a symposium - Federal Responses to Police Misconduct: Possibilities and Limits. Paper abstracts follow:
What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the “ACLU Effect” and the Role of Stop and Frisks in Preventing Gun Violence
Paul G. Cassell (Quinney College of Law at the University of Utah)
Richard Fowles (University of Utah)
Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed—274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This Article attempts to unravel what happened.
This Article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of street stops is a strong candidate for the causal factor, particularly since the timing of the homicide spike so directly coincides with the decline. Regression analysis of the homicide spike and related shooting crimes identifies the street stop variable as the likely cause. The results are highly statistically significant and robust over a large number of alternative specifications. And a qualitative review for possible “omitted variables” in the regression equations fails to identify any other plausible candidate that fits the data as well as the decline in stops.
Our regression equations permit quantification of the costs of the decline in street stops. Because of fewer stops in 2016, it appears that (conservatively calculating) approximately 236 additional victims were killed and 1,115 additional shootings occurred in that year alone. And these tremendous costs are not evenly distributed, but rather are concentrated among Chicago’s African-American and Hispanic communities.
The most likely explanation for the fall in stops that appears to have triggered the homicide spike is a consent decree on the subject entered in-to by the American Civil Liberties Union (ACLU) with the Chicago Police Department (CPD). Accordingly, modifications to that consent decree may be appropriate.
More broadly, these findings shed important light on the ongoing national debate about stop and frisk policies. The fact that America’s “Second City” suffered so badly from a decline in street stops suggests that the arguably contrary experience in New York City may be an anomaly. The costs of crime—and particularly gun crimes—are too significant to avoid considering every possible measure for reducing the toll. The evidence gathered here suggests that police street stop activities may be truly lifesaving measures that must be considered as part of any effective law enforcement response to gun violence.
Police Executive Opinions of Legal Regulation
Roger Michalski (University of Oklahoma College of Law)
Stephen Rushin (Loyola University Chicago School of Law)
By conducting a national survey, this Article empirically assesses how American police leaders perceive
external legal regulation.
At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community.
These complaints underscore an uncomfortable, but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal. So, what do police leaders actually care about most when faced with external legal regulation? To answer this question, this Article relies on a dataset of 489 survey responses collected from a random sample of law enforcement leaders across the country. With the help of a multidimensional preference-scaling model, this Article shows that the chief concern of police leaders is how external legal regulations impair the safety of officers and the public. Respondents rated the protection of constitutional rights and the prevention of crime as the second and third most important values. And, contrary to assumptions made by many policymakers, police leaders ranked cost, predictability, and consistency as relatively unimportant considerations.
What the Feds Can Do to Rein In Local Mercenary Criminal Justice
Wayne A. Logan (Florida State University College of Law)
Although physical harm caused by local police is often the target of federal intervention and reform efforts, this article focuses on the financial harms caused by local police. As the U.S. Department of Justice’s Ferguson Report and numerous other studies highlight, local police departments are front-line players in a broader governmental strategy to generate revenue from individuals ensnared in the criminal justice system. The strategy is problematic for a variety of reasons, including the skewing effect it has on enforcement priorities and the major negative personal impact it has on those targeted (very often, people of color and economically disadvantaged individuals). Aggravating matters, the mercenary practices of local criminal justice system actors are complemented by private business entities that secure significant profits from the business local governments send their way.
This Article surveys the significant adverse consequences of local mercenary criminal justice for governance, residents and their communities; the many obstacles federal reform faces; and the several possible avenues for reform and their likelihood of success. The Article concludes with an assessment of the likelihood of the federal government actually undertaking and succeeding at such reform efforts, which will face heavy headwinds similar to, but in many ways different and more intractable than, excessive-force-related reform efforts.
“Not Dead Yet”: The National Police Crisis, a New Conversation About Policing, and the Prospects for Accountability-Related Police Reform
Samuel Walker (University of Nebraska at Omaha)
This Article argues that, despite the actions of the Trump Administration in cancelling two Justice Department accountability-related police reform programs, the prospects for continued police reform efforts in the immediate future remain alive. This argument is based on several factors, both in the broader social and political environment and within the law enforcement profession. First, the events in Ferguson, Missouri, in August 2014, and the related events that followed, created a National Police Crisis. The crisis created a high level of public awareness and concern about policing and police reform that has already served as a necessary predicate to police reform efforts. Second, the crisis stimulated police debates over American policing and police reform that have coalesced into what this Article terms a New Conversation, involving a rough national consensus about needed police reforms. The New Conversation has already guided a broad series of police reform efforts at the national, state, and local levels. Three principal sources contribute to the New Conversation, which are reviewed in detail in this Article. The three sources include principles articulated by the President’s Task Force on 21st Century Policing; policies recommended by the Police Executive Research Forum, a professional association of police chiefs; and administrative practices embodied in court-enforced settlements negotiated by the Civil Rights Division of the U.S. Department of Justice. These three elements constitute a “roadmap” for future police reform.
Smarter Early Intervention Systems for Police in an Era of Pervasive Recording
Mary D. Fan (University of Washington School of Law)
Investigations of police departments by the U.S. Department of Justice spurred the spread of early intervention systems (“EIS”) that use data to detect officers at elevated risk of problematic conduct. These systems of internal self-surveillance remain even when consent decrees expire and federal investigators turn to other tasks—or pull back during Presidential regime changes. Such automated technologies of harm detection and prevention that outlast political upheaval are alluring—but they are only as effective as the data and criteria on which they rely to detect and prevent problems. Current systems largely are dependent on reported events and use simplistic thresholds based on intuition to trigger red flags. To improve the harm prevention power and build a smarter system, this Article proposes using a rich and growing source of data not traditionally used in early intervention systems—audiovisual data from police-worn body cameras and citizen cell phone cameras. The Article also presents findings from the coding and collection of 213 body camera policies regarding whether a major source of audiovisual data—police-worn body camera videos—may be used to monitor and evaluate officers. While there are policy silences, gaps, and splits, the Article concludes that the majority of departments have the opportunity to use the rapidly accumulating trove of audiovisual data to create smarter early intervention systems.
Police Accountability and the Problem of Regulating Consent Searches
Susan A. Bandes (DePaul University College of Law)
There is a palpable disconnect between the practical importance of consent searches and the attention these searches garner from courts and scholars. Although there is no reliable data on the prevalence of consent searches (and this dearth of data is itself part of the problem), there is consensus that the vast majority of searches—perhaps 90% or more —are conducted under color of consent doctrine. Consent is the most frequent justification offered for searches that lack a warrant, probable cause, or reasonable suspicion. Consent obviates the need for law enforcement to conform to nearly all the carefully enunciated rules that apply to nonconsensual searches. Critics routinely refer to it as a “major loophole” and an “efficient end run” around the Fourth Amendment that “either satisfies or waives whole swaths of constitutional text.”
Yet courts have provided little guidance on how to regulate this massive exception that nearly swallows up the rule of the Fourth Amendment. To the contrary, the Supreme Court’s few forays into consent search doctrine have sown confusion and misdirection. Other institutions have occasionally stepped in to fill the gap, and the history of those efforts is instructive. Most notably, states have relied on their own constitutions to provide firmer guidance to police—providing some fascinating comparisons of the results of differing jurisdictional and doctrinal approaches to the problem. But at bottom the history of the regulation of consent searches is notable mainly for its gaps, its failures, and a pervasive lack of attention to the subject on every level of government.
Consent doctrine provides fertile ground for an evaluation of various institutional approaches to supervising police conduct. The overall story thus far is mainly one of neglect, but it also contains some interesting interventions. It’s an opportunity to examine the scaffolding: the built-in advantages and disadvantages of various institutional approaches. But it also makes clear the impossibility of considering these institutional questions without reference to concrete context. In the realm of policing, noticeable shifts in governmental approaches and priorities are of-ten visibly tied to the change in political regimes. These fluctuations illustrate the perils of treating each institution’s role as fixed, but they also highlight the essential role of each institution, as well as the ways in which some institutions can step up as others step back.
I will approach the regulation issue by considering three intertwined questions. First, what kinds of regulation will effectively limit police mis-use of consent searches? Second, what data will help illuminate the nature and scope of the problem? And third, what entities can best achieve these regulatory and data-gathering goals? Before considering these three questions, it is important to understand the current state of affairs and the governmental actions and inactions that created it.
Interrogation Parity
Kate Levine (St. John’s University School of Law)
Stephen Rushin (Loyola University Chicago School of Law)
Over the past several years there has been increased focus on the way police are treated by the criminal justice system and their own internal disciplinary mechanisms. Scholars and the media have taken note of special interrogation protections afforded to the police when they become the target of internal or criminal investigation. In the approximately twenty states with statutory Law Enforcement Officer Bills of Rights (“LEOBRs”), and the vast majority of jurisdictions bound by local collective bargaining agreements, rank and file officers have negotiated for a number of protections, not applicable to anyone else, to shield themselves from coercive interrogation techniques. Some of the protections include time limits on questioning, limiting threats and promises made to suspects, ensuring the suspect is allowed to sleep, use the bathroom, and eat at humane intervals, and many other rights not available to ordinary citizens.
With the exception of a very few, scholars, journalists, and advocates are in agreement that these special interrogation protections are unfair, a barrier to accountability for “bad” officers, and a barrier more generally to police reform. Many authors focus their criticism on waiting periods frequently afforded to officers accused of misconduct. But some have also criticized other interrogation protections, arguing that any protection not currently given to civilians should be eradicated.
On the other hand, there is widespread agreement among scholars and criminal justice reform advocates that interrogation protections for ordinary criminal suspects are not strong enough. The constitutional limits on police through Miranda and the voluntariness test have proven ineffective to protect vulnerable and even innocent suspects from confessing against their will and interest. The exoneration of an alarming number of people who confessed to serious crimes, combined with a new understanding about what leads vulnerable suspects—the young, the mentally ill, the mentally disabled—to confess have led to voluminous scholarly calls for reform. Many such reforms dovetail with the interrogation protections given to police—the very protections many would like to see stripped from the police.
In this Article, we argue that these diverging positions, while raising legitimate concerns about distributional inequity, stand in the way of interrogation reform for ordinary citizens. But rather than eliminating many of the interrogation protections currently afforded to law enforcement officers, we argue that the law should extend many of these protections to all suspects, both civilian suspects and police suspects. The current distributional inequality is problematic for several reasons, not least because it affords the most sophisticated suspects the most protection while leaving the most vulnerable suspects at the mercy of constitutional protections that have been interpreted time and again to offer weak and limited protection.
In keeping with the theme of this symposium edition, we propose a novel method by which the federal government could combat this sort of distributional inequality in the criminal justice system, while also promoting broader reform in police interrogation procedures. We propose that Congress could use its spending power to condition federal funds to police departments on the adoption of uniform, minimum protections for both civilian and criminal suspects facing interrogations. Using existing LEOBRs and police union contracts as a model, we argue that Congress could mandate that all police departments receiving certain federal funds limit unreasonably long interrogations, ban the use of abusive or threatening language, record all interrogations, and give suspects a right to tend to physical necessities like bathroom use during interrogations. Through an examination of the existing literature on police interrogations, we argue that these protections represent the least a department can do to protect against false confessions.