Preventing police misconduct often requires changing the department in which it arises, but police departments have proved largely resistant to legal efforts to reform them. A promising federal law, 42 U.S.C. § 14141, permits the Justice Department to sue police departments that are engaged in a “pattern or practice” of misconduct in order to compel structural reform intended to protect civil rights. Unfortunately, although the statute was passed in 1994, it has not yet been used to significant effect. Too few investigations and suits have been brought, and too few departments reformed. The Obama Administration has an opportunity to improve the use of § 14141. But widespread reform cannot be effectively achieved simply by bringing more investigations and suits to compel reform, because such investigations are expensive, resources are inevitably limited, and many departments may need reform. To solve this problem, I propose an approach to enforcing § 14141 that would leverage existing resources to promote proactive reform in more police departments than the Justice Department can sue. More specifically, I advocate a “worst-first” litigation police that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a “safe harbor” from suit for police departments that voluntarily adopt best practices reforms.
The Problem: Forcing Police Departments to Reform is Too Expensive
Everyone has heard or seen stories of police misconduct. Throughout the nation, police officers sometimes violate the law and subject individuals to abuse. The problem is not simply the product of a few bad officers or the occasional mistake resulting from the difficult job officers do. Instead, police misconduct is a systemic problem, which arises from deficiencies in police departments that lead officers to break the rules. When a police department resists public feedback, provides inadequate training and policy guidance to officers, or disciplines laxly those who violate the law, 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.
Congress passed 42 U.S.C. § 14141 in 1994 to help address the absence of effective legal tools for promoting departmental reform. Police departments often resist structural change. While federal law has long prohibited some kinds of police misconduct, the traditional federal legal means of regulating police officer conduct–the exclusionary rule, civil suits, and criminal prosecutions–have proved inadequate to force change in problematic departments. Likewise, structural reform litigation, which has compelled reform in public institutions in other civil rights arenas, has been largely unavailable for suing police departments due to federal court decisions. Section 14141 changed that landscape. It authorizes the Justice Department to bring suits for equitable and declaratory relief against police departments that engage in a pattern or practice of unconstitutional police misconduct.
Legal scholars initially saw § 14141 as having enormous potential to improve police departments and protect civil rights. The Civil Rights Division of the Justice Department has now been enforcing § 14141 for 15 years, however, and that that early enthusiasm has waned. The Justice Department has focused its § 14141 efforts on a few key kinds of misconduct, including racial profiling, the use of excessive force, false arrests, and illegal stops and searches. And it has used the statute to urge a core set of promising reforms on problematic departments, including early intervention systems that identify misconduct-prone officers; refined formal policies, especially on the use of force; strengthened citizen complaint procedures; and improved officer training. But it has apparently brought only thirty-three full investigations of police departments since 1994.1 In only fourteen of those investigations, has the Justice Department entered into a formal settlement with the police department mandating changes. In twelve more departments, the Justice Department recommended changes designed to reduce misconduct. The other seven investigations did not result in any public action. In many cities, the problem of systemic misconduct appears to continue. The Justice Department’s efforts have been too limited to achieve widespread reform.
The Obama Administration represents new hope for those interested in policing reform. Political commitment and resources devoted to enforcing § 14141 are both likely to increase under the new Administration. However, if the Justice Department uses those new resources merely to bring more suits, this Administration is likely to be only marginally more effective in enforcing § 14141 than its predecessors. If more than a few departments require significant reform, the Justice Department cannot bring enough investigations and suits to reform the nation’s most problematic police departments, even with additional resources. Investigating and suing a police department for violating § 14141 is labor intensive and costly. As a result, even if the Justice Department’s budget devoted to § 14141 were doubled or tripled, the Department simply cannot solve the problem of police misconduct by investigating and suing one department after another.
The Solution: Incentivizing Proactive Reform
To have more influence on police misconduct nationwide, the Obama Administration must improve as well as enlarge the government’s efforts to reduce systemic misconduct. It cannot try to bring change to problematic police departments merely by suing them directly. Instead, it must leverage the limited resources available for § 14141 enforcement in order to influence not only those departments it investigates and sues, but also those it does not. The Justice Department must use § 14141 to induce reform indirectly by incentivizing proactive institutional change in departments that have not been sued.
In order to promote this end, the Justice Department should adopt a new approach to § 14141 enforcement. 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 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 § 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 § 14141 enforcement policy.
The first prong requires the Justice Department to adopt a “worst first” policy that prioritizes suing the worst departments. Such a policy requires a radical change in how the Justice Department approaches enforcing § 14141. Instead of deciding which departments to target under § 14141 simply by reacting to complaints, the Justice Department itself must be proactive: it must identify the worst departments and pursue them.
Identifying the worst departments requires that the Justice Department have sufficient information to estimate the relative amounts of misconduct in different police departments. Towards this end, Congress should grant the Justice Department authority to issue regulations requiring police departments to collect and report essential data in a uniform manner. This data would allow the Justice Department to formulate a worst list, a list of departments with the most significant indicia of key kinds of misconduct. Once the Justice Department has formulated that list, it should investigate departments on the list in order and sue those departments in which the investigation confirms serious systemic misconduct.
By creating a worst list and following a worst-first litigation strategy, the Justice Department can concentrate resources on fewer departments, but induce more to reform. Police departments on the worst list would know that they might be sued soon. This threat of suit would raise the expected costs of § 14141 for these problematic departments. Raising the expected cost of § 14141 for these departments would increase their incentive to adopt reforms that will prevent misconduct and therefore lead to the department’s removal from the list.
The second prong requires the Justice Department to announce a “safe harbor” policy of not investigating or suing any department that officially commits itself to adopting proactively a set of reforms designed by the Justice Department and then makes substantial, verifiable progress towards implementing those reforms. A police department that receives the safe harbor would avoid the litigation costs associated with a § 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. Though a safe harbor mechanism must have an effective monitoring scheme, monitoring would not be very costly. The safe harbor policy should therefore make adopting reforms proactively more valuable for police departments.
In addition to increasing the benefits of reform, a safe harbor mechanism would amplify the positive effects of the worst-first strategy by creating a cascade of reform. A worst-first enforcement strategy incentivizes police departments slowly because departments move off the worst list only when they are sued or successfully eliminate indicia of misconduct. A safe harbor provision changes that. The Justice Department will remove a department from the worst list as soon as it satisfies the requirements of the safe harbor. Although this process would not be instantaneous, a police department should be able to earn safe harbor status more quickly than the department could eliminate indicia of misconduct or than the Justice Department could investigate and sue. As a result, there would be additional movement off the worst list (bringing more departments onto the list) as police departments near the top earn safe harbor.
Because departments on the list cannot know how fast a department above them may earn safe harbor, they would have an incentive to begin minimizing misconduct or working towards a safe harbor as soon as they appear on the worst list. As these departments adopt reforms, the Justice Department would remove them from the list and replace them with other departments. This dynamic would result in a cascade of reform, as departments on the list adopt reforms to avail themselves of the safe harbor and new departments replace them on the worst first list.
The third prong of the proactive litigation strategy I advocate requires using Justice Department resources to refine and disseminate information about uncovering institutional deficiencies that breed police misconduct and implementing remedial measures that reduce misconduct. This effort will require that the Justice Department carry out or facilitate research and training on reducing police misconduct and publish materials to aid police departments in their reform efforts. This technical assistance program would make reform more cost effective for police departments by lowering the information costs of detecting and remedying departmental deficiencies that cause misconduct.
Together, the worst first, safe harbor, and technical assistance policies would raise the probability of suit and lower the costs and increase the benefits of reform for the worst of the nation’s police departments. Because it is less expensive for the Justice Department to induce police departments to adopt reforms through the worst-first and safe harbor policies; to verify their reform efforts; and to provide technical assistance than it is to investigate, sue, and monitor a department, the Justice Department can induce more reform than it can force using the same resources. In this way, the § 14141 enforcement strategy advanced here would improve upon existing enforcement efforts.
Misconduct is often discussed solely as a wrong that can never be accepted, as a crime that needs to be punished. This rhetoric has lead to a court-centered, reactive approach to civil rights violations, even with respect to forward-looking remedies, like equitable relief. Perhaps for this reason, § 14141 has been treated by both scholars and the Justice Department as a means of reforming police departments one at a time as misconduct comes to light. This approach is reactive in two ways: the Justice Department reacts to complaints and referrals before it looks for a pattern of misconduct, and police departments react to Justice Department suits by engaging in reform. I treat police misconduct instead as a regulatory problem. Police departments play a crucial role in our society: they protect the public and enforce the law. But some means of achieving these ends result in significant social harm in the form of police misconduct. Because resources to reform police departments and prevent that harm are limited, we should use them to reduce misconduct as efficiently as possible. Section 14141 is one important tool for the federal regulation of police misconduct, and it is best utilized by a doubly proactive approach: the Justice Department must assess misconduct nationally and choose its § 14141 targets to most reduce it, and then the Justice Department must use the statute to maximize the incentives for police departments to engage in reform before they are sued. Even if the Justice Department has resources sufficient to sue only five departments each year, it can use those resources to create a § 14141 policy that provides sufficient incentives for many more departments to reform. In this way, by regulating rather than litigating to reduce misconduct, the federal government can better promote policing reform and civil rights nationwide.
Copyright © 2010 Stanford Law Review.
Rachel Harmon is an Associate Professor of Law at University of Virginia School of Law.
This Legal Workshop Editorial is based on the following Article: Rachel Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 STAN. L. REV. 1 (2009).
- The Justice Department has not made public statistics about its § 14141 investigations, and what it has made public about particular investigations may be incomplete. ↩
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