Promoting civil rights through proactive policing reform

Stanford Law Review

Volumn 62, Issue 1, 2009, Pages 1-70

  Harmon, Rachel A ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 73549087167     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (204)

1. See, e.g., U.S. DEP'T OF JUSTICE, PRINCIPLES FOR PROMOTING POLICE INTEGRITY 2, 10-13 (2001), available at http://www.ncjrs.gov/pdffiles1/ojp/186189.pdf; SAMUEL WALKER, THE NEW WORLD OF POLICE ACCOUNTABILITY 14-17 (2005). Although scholars discussing police misconduct sometimes use a broader definition, I mean "misconduct" to refer to conduct that violates the Constitution or federal civil rights law.
2. See infra text accompanying notes 16-25.
3. See infra notes 26-29 and accompanying text.
4. See infra note 30.
5. See infra note 39 and accompanying text.
6. See infra notes 71-74 and accompanying text.
7. Although here and elsewhere I refer to the effect of § 14141 "suits," or the Justice Department's ability to "sue," it would be more accurate to talk about the effect of § 14141
8. Many police departments maintain records about officer conduct determined to be violations of law or policy. Even if departments were to share these data voluntarily, however, the content, format, and accuracy of these records vary enormously across departments and do not provide an adequate basis for comparing departments. See, e.g., NAT'L RESEARCH COUNCIL, FAIRNESS AND EFFECTIVENESS IN POLICING: THE EVIDENCE 258-62 (Wesley G. Skogan & Kathleen Frydl eds., 2003) (discussing problems with data on excessive and lethal force). While some studies have attempted to assess rates for some kinds of misconduct, these efforts have also largely been restricted to a small number of departments and are of little comparative use. See, e.g., id.
9. Many of the reforms that experts commonly recommend for reducing misconduct address informational, supervisory, and administrative problems that arise principally in large departments. For example, early intervention systems that collect data on officer conduct to allow departments to identify problems, or improved internal affairs procedures for investigating and adjudicating complaints of misconduct, are most clearly and uniformly appropriate for the departments that have at least 100 police officers, though they will also usually be appropriate in the additional departments that have between fifty and 100 full-time officers. See SAMUEL WALKER, U.S. DEP'T OF JUSTICE, EARLY INTERVENTION FOR LAW ENFORCEMENT AGENCIES 21 (2003), available at www.cops.usdoj.gov/files/RIC/Publications/e07032003.pdf. By contrast, these reforms will often be of little value and will rarely be cost-effective in smaller departments, of which there are more than 15,000. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2004, at 2 tbl.2 (2007), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/csllea04.pdf. These departments will typically require different reforms and more individualized tailoring of common reforms to their particular circumstances. See, e.g., JEFFREY J. NOBLE & GEOFFREY P. ALPERT, MANAGING ACCOUNTABILITY SYSTEMS FOR POLICE CONDUCT 3 (2009) (describing size as a central factor in determining whether a police department could realistically staff an independent internal affairs unit for investigating officer misconduct). Large organizations also enjoy economies of scale that permit them to implement more costly measures for preventing misconduct. This proposal therefore does not address the problem of reducing misconduct by small departments. Rather, it seeks to increase the rate of reform only at the worst of the nation's large police departments. This limitation is consistent with the Justice Department's use of § 14141 so far: only two of its investigations have occurred in a department of fewer than fifty officers. See infra note 155. This focus is also consistent with scholarly commentary on § 14141: no scholar has suggested that § 14141 enforcement should reach beyond large departments. If anything, the academic response has been to push the Justice Department to focus on larger departments more than it has in the past. See, e.g., Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1407 (2000); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 516 (2008); see also Eric Lichtblau, U.S. Low Profile in Big-City Police Probes Is Under Fire, L.A. TIMES, Mar. 17, 2000, at A1 (reporting complaints that the Justice Department inappropriately used § 14141 in small towns and cities while abuses in much larger departments went unaddressed).
10. This amounts to 2358 law enforcement agencies in the Justice Department's most recent law enforcement agency census. See REAVES, supra note 9, at 2 tbl.2.
11. See infra II.D.
12. See Rachel A. Harmon, When Is Police Violence Justified?, 102 NW. U. L. REV. 1119, 1150-55 (2008).
13. See, e.g., INT'L ASS'N OF CHIEFS OF POLICE, PROTECTING CIVIL RIGHTS: A LEADERSHIP GUIDE FOR STATE, LOCAL, AND TRIBAL LAW ENFORCEMENT 6-9 (2006), available at http://www.cops.usdoj.gov/files/ric/Publications/e06064100.pdf; WALKER, supra note 9; SAMUEL WALKER ET AL., SUPERVISION AND INTERVENTION WITHIN EARLY INTERVENTION SYSTEMS: A GUIDE FOR LAW ENFORCEMENT CHIEF EXECUTIVES (2005), available at http://www.cops.usdoj.gov/files/RIC/Publications/supervisionintereis_lec hiefs.pdf.
14. INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 55-66; WALKER, supra note 9, at 109-10; WALKER ET AL., supra note 13, at 31.
15. See, e.g., WALKER, supra note 1, at 20-40 (describing advances in and limits of police professionalism during the twentieth century).
16. See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453, 465-67 (2004)
17. Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in POLICE VIOLENCE 247, 253, 258-59, 266 (William A. Geller & Hans Toch eds., 1996)
18. John V. Jacobi, Prosecuting Police Misconduct, 2000 WIS. L. REV. 789, 806-11
19. David Rudovsky, Police Abuse: Can the Violence Be Contained?, 27 HARV. C.R.-C.L. L. REV. 465, 488, 490-92 (1992).
20. See, e.g., Armacost, supra note 16, at 457-58.
21. See, e.g., id. at 467-69; Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. L. REV. 1275, 1320-27 (1999); Cheh, supra note 16, at 264, 266. Since individual officers are often indemnified by their departments or municipalities as a matter of contract or state or local law, Armacost, supra note 16, at 473, institutional changes may theoretically result even from damages awarded against individual officers.
22. See, e.g., MICHAEL AVERY ET AL., POLICE MISCONDUCT: LAW AND LITIGATION §§ 4:5, 4:15 (3d ed. 2006); Armacost, supra note 16, at 471, 489-90; Cheh, supra note 16, at 265.
23. See, e.g., Armacost, supra note 16, at 472-73.
24. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 965 (2005) [hereinafter Levinson, Empire-Building Government] ("[T]here is no reason to expect that . . . compensation payments will change [the government's] behavior in any predictable way.")
25. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 367-68 (2000) [hereinafter Levinson, Making Government Pay] (arguing that because government agencies do not internalize costs, "awarding compensation to the victims of constitutional violations would not seem to have any deterrent effect on government"); see also NAT'L RESEARCH COUNCIL, supra note 8, at 278-80 (noting evidence that suggests that departments do not institute changes in response to successful civil suits).
26. Levinson, Making Government Pay, supra note 21, at 357.
27. For example, Levinson does not address issues of scale. Civil judgments are likely to have a much more significant impact on political actors in small cities and towns than the large cities he seems to envision. See NAT'L RESEARCH COUNCIL, supra note 8, at 278-280
28. Even if § 1983 is a weak tool for deterring police misconduct, it may remain an important tool for compensating victims of misconduct. But see Levinson, Making Government Pay, supra note 21, at 402-14.
29. See, e.g., United States v. Payner, 447 U.S. 727, 733-35 (1980) (refusing to require exclusion of evidence produced by flagrant and intentional Fourth Amendment violations of third-party's rights unless the suspect's rights were violated, despite the interest in deterring illegal searches); Rakas v. Illinois, 439 U.S. 128, 138 (1978) (refusing to require exclusion of evidence produced by Fourth Amendment violations by the police unless the suspect's rights were violated).
30. See, e.g., Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2000-05 (1999) (reviewing MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS (1998)).
31. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1292 (1976)
32. John C. Jeffries, Jr. &George A. Rutherglen, Structural Reform Revisited, 95 CAL. L. REV. 1387, 1412-13 (2007).
33. 42 U.S.C. § 1983 expressly provides for both damages and equitable relief. See Jeffries & Rutherglen, supra note 27, at 1408-21 (describing the history of structural litigation reform and implementation of equitable remedies on public institutions).
34. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-10 (1983) (finding that plaintiff lacked standing to sue police department for declaratory and equitable relief); Rizzo v. Goode, 423 U.S. 362, 371-73 (1976) (holding that plaintiffs had insufficient personal stake in major reform of police department to satisfy case or controversy requirement); O'Shea v. Littleton, 414 U.S. 488, 493-99 (1974) (dismissing the plaintiffs' case for lack of actual case or controversy); United States v. City of Philadelphia, 644 F.2d 187, 199 (3d Cir. 1980) (concluding that the United States had no standing to sue police department for pattern of civil rights violations against individuals without specific statutory authority); Gilles, supra note 9, at 1396-99 (2000). Not all such suits have been barred, however. See, e.g., Allee v. Medrano, 416 U.S. 802 (1974); Thomas v. County of Los Angeles, 978 F.2d 504 (9th Cir. 1992).
35. See, e.g., Gilles, supra note 9, at 1384, 1399 ("The equitable standing doctrine articulated in Lyons effectively relegates private individuals aggrieved by police misconduct to damages suits under 42 U.S.C. § 1983."); Jeffries & Rutherglen, supra note 27, at 1418 ("The inhibitions imposed by Rizzo and Lyons are . . . highly consequential. They obscure the benefits of epidemiological assessments of police violence and preclude the use of systemic remedies for what are, at bottom, institutional and systemic problems.").
36. On March 2, 1991, Los Angeles Police Department officers attempted to subdue Rodney King, an African-American man, after a high-speed chase. King initially resisted arrest, and officers fired a taser at him and struck him with batons in order to subdue him. As a videotape of the incident famously portrayed, officers continued to stomp on King, kick him, and strike him with baton blows even after he lay prone on the ground. See, e.g., Koon v. United States, 518 U.S. 81, 85-87 (1996).
37. Id. at 87-88.
38. See, e.g., id. at 88 ("More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed."); Seth Mydans, Verdicts Set Off a Wave of Shock and Anger, N.Y. TIMES, Apr. 30, 1992, at D22 (describing beginning of riots in Los Angeles following the Rodney King verdict); President George Bush, Address to the Nation on the Civil Disturbances in Los Angeles, California (May 1, 1992), available at http://bushlibrary.tamu.edu/research/public_papers.php?id=4252&year= 1992&month=5 (describing riots in Los Angeles and speaking of outrage about Rodney King beating).
39. Koon, 518 U.S. at 88-90 (stating that each convicted defendant was sentenced to thirty months' imprisonment). The Supreme Court remanded the case for further proceedings. Id. at 114. The defendants were later resentenced to thirty months' imprisonment each. Jim Newton, Judge Refuses to Return Koon, Powell to Prison, L.A. TIMES, Sept. 27, 1996, at A1.
40. See John L. Mitchell, Punitive Damages From Police In King Beating Rejected, L.A. TIMES, June 2, 1994, at A1 (describing $3.8 million verdict in compensatory damages for King three years after the beating).
41. See INDEP. COMM'N ON THE L.A. POLICE DEP'T, REPORT OF THE INDEPENDENT COMMISSION ON THE LOS ANGELES POLICE DEPARTMENT, at iii-iv (1991).
42. Id. at iv.
43. See MERRICK J. BOBB ET AL., FIVE YEARS LATER: A REPORT TO THE LOS ANGELES POLICE COMMISSION ON THE LOS ANGELES POLICE DEPARTMENT'S IMPLEMENTATION OF THE INDEPENDENT COMMISSION RECOMMENDATIONS, at vi (1996), available at http://www.parc.info/client_files/Special%20Reports/2%20-%20Five%20Years %20Later%20-%20Christopher%20Commission.pdf ("Given the five years that have elapsed since the Christopher Report was published, we conclude that the Department has not undergone reform to the extent that was possible or required."). Subsequent scandals again highlighted the inadequacy of reform following the King incident. See, e.g., RAMPART INDEP. REVIEW PANEL, REPORT OF THE RAMPART INDEPENDENT REVIEW PANEL 3, 16-38 (2000), available at http://www.lacity.org/oig/rirprpt.pdf (describing the ongoing inadequacy of civilian and political control of the police department).
44. See Armacost, supra note 16, at 527-28; Gilles, supra note 9 at 1401-04.
45. The statute reads in full: § 14141. Cause of action (a) Unlawful conduct It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (b) Civil action by Attorney General Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [sic] has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
46. U.S.C. § 14141 (2006) (footnote omitted). The statute applies not only to law enforcement, but also to the treatment of incarcerated persons. This Article concerns exclusively § 14141 suits against law enforcement departments for law enforcement and order-maintenance activities, like enforcing traffic laws, investigating crimes, and conducting arrests, rather than running a jail or juvenile justice facility. The Justice Department makes the same distinction and treats the two types of § 14141 suits separately. See U.S. Dep't of Justice, Civil Rights Division, Special Litigation Section Frequently Asked Questions, http://www.usdoj.gov/crt/split/faq.php (last visited Aug. 29, 2009) [hereinafter U.S. Dep't of Justice, Special Litigation FAQs]. While I refer to police departments as local and tied to a particular municipality, § 14141 applies as well to state law enforcement agencies, county police departments, and sheriffs' offices. Since all of these engage in traditional law enforcement functions, for my purposes, the differences among them do not matter. See, e.g., REAVES, supra note 9, at 4-5.
47. U.S. DEP'T OF JUSTICE, UNITED STATES' ATTORNEYS' MANUAL 8-2.241, 8-2.260 (1999) [hereinafter UNITED STATES' ATTORNEYS' MANUAL], available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title8/2mcvr.htm; U.S. DEP'T OF JUSTICE, UNITED STATES' ATTORNEYS' MANUAL: CIVIL RIGHTS RESOURCE MANUAL § 5 (1998) [hereinafter CIVIL RIGHTS RESOURCE MANUAL], available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title8/cvr0005.ht m.
48. There has been no litigation yet over the meaning of "pattern or practice" in § 14141. The Justice Department and scholars have assumed that the term "pattern or practice" in the statute shares the meaning attributed to these words in employment discrimination law. See Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 815, 822-23 (1999) (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.16 (1977)); Simmons, supra note 9, at 517 n.147 (citing Livingston, supra); see also CIVIL RIGHTS RESOURCE MANUAL, supra note 41, § 5 (citing Int'l Bhd. of Teamsters, 431 U.S. at 324); U.S. Dep't of Justice, Special Litigation FAQs, supra note 40. To establish a "pattern or practice" of violations in that context, the Supreme Court has said that "the Government ultimately [must] prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." Int'l Bhd. of Teamsters, 431 U.S. at 336. Instead, the government must demonstrate that violations are "standard operating procedure-the regular rather than the unusual practice." Id.
49. See, e.g., INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 8; U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
50. See INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 7; U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
51. See INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 7; U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
52. See, e.g., INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 8.
53. Letter from Shanetta Y. Cutlar, Chief of Special Litig. Section of Civil Rights Div., to Kerry Drue, Attorney Gen. for V.I. (Oct. 5, 2005) [hereinafter V.I. Letter], available at http://www.usdoj.gov/crt/split/documents/virgin_island_pd_talet_10-5-05. pdf.
54. For example, the website states that the Justice Department has conducted more than seventy preliminary assessments, but this portion of the website does not appear to have been updated since July 2008. U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
55. See U.S. Dep't of Justice, Civil Rights Div., Special Litigation Section Documents and Publications, http://www.usdoj.gov/crt/split/findsettle.php (last visited Oct. 12, 2009) [hereinafter U.S. Dep't of Justice, Documents and Publications] (providing documents relating to tweny-five investigations in Pittsburgh, Pa.; Steubenville, Ohio; Columbus, Ohio; the State of New Jersey; Los Angeles, Cal.; Washington, D.C.; Detroit, Mich.; Cincinnati, Ohio; Cleveland, Ohio; Mt. Prospect, Ill.; Buffalo, N.Y.; Miami, Fla.; Schenectady, N.Y.; Portland, Me.; Villa Rica, Ga.; Prince George's County, Md.; Bakersfield, Cal.; Alabaster, Ala.; Beacon, N.Y.; Virgin Islands; Warren, Ohio; Easton, Pa.; Austin, Tex.; Yonkers, N.Y.; and Orange County, Fla.); U.S. Dep't of Justice, Special Litigation FAQs, supra note 40 (mentioning 8 more full investigations or settlements in Highland Park, Ill.; Charleston, W. Va.; Eastpointe, Mich.; New Orleans, La.; New York, N.Y.; Providence, R.I.; Riverside, Cal.; Tulsa, Okla.).
56. See, e.g., U.S. Dep't of Justice, Documents and Publications, supra note 50 (providing consent decrees in Pittsburgh, Steubenville, New Jersey, Los Angeles, Detroit, Prince George's County, and the Virgin Islands).
57. See id. (providing memoranda of agreement in Cincinnati, Mt. Prospect, Buffalo, Villa Rica, Prince George's County, and Washington, D.C.). In Prince George's County, the investigation resulted in both a consent decree and a memorandum of agreement. Although not provided as a link from its documents website, the Justice Department has also entered into a memorandum of agreement with Highland Park, Illinois. See Memorandum of Agreement Between the United States and the City of Highland Park, Ill. (July 11, 2001), available at http://www.usdoj.gov/crt/split/documents/Highland_MA.php.
58. See U.S. Dep't of Justice, Documents and Publications, supra note 50 (providing letters in Columbus, Miami, Schenectady, Portland, Bakersfield, Alabaster, Beacon, Warren, Easton, Austin, Yonkers, and Orange County). In Pittsburgh, Los Angeles, Washington, D.C., Detroit, Cleveland, Cincinnati, and the Virgin Islands, the government sent a technical assistance letter and later reached a settlement with the department resulting in a consent decree or memorandum of agreement. In Columbus, Ohio, the government sent a letter recommending reforms and later ended the investigation when the department agreed to engage in specific reforms. That agreement was never formalized in a memorandum of agreement. See U.S. Dep't of Justice, Special Litigation FAQs, supra note 40 (characterizing Columbus, Ohio settlement as a conditional dismissal).
59. See supra notes 50-53. Some of the seven departments without public resolutions may have received technical assistance letters recommending specific reforms that never became public.
60. See U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
61. See Local No. 93, Int'l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (quoting United States v. ITT Cont'l Banking Co., 420 U.S. 223, 235-37 & n.10 (1975)) (describing consent decrees as containing aspects of both contracts and judicial decrees).
62. See, e.g., United States v. City of Detroit, No. 03-72258, para. 148 (E.D. Mich. July 18, 2003) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/dpd/detroitpd_uofwdcd_613.pdf (stating that the court will have jurisdiction for a minimum of five years and that the city may not move to terminate the decree until substantial compliance has been maintained for a minimum of two years); United States v. City of Los Angeles, No. 00-11769 GAF, para. 179 (C.D. Cal. June 15, 2001) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/laconsent.htm (same); United States v. City of Pittsburgh, No. 2:97-cv-00354-RJC, para. 79 (W.D. Pa. Apr. 16, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/pittssa.htm (same); Memorandum of Agreement Between the United States and the Village of Mt. Prospect, Ill., para. 44 (Jan. 22, 2003) [hereinafter Mt. Prospect MOA], available at http://www/justice.gov/crt/split/documents/mtprosepct_moa.pdf (same).
63. See, e.g., Mt. Prospect MOA, supra note 57, para 43; see also Memorandum of Agreement Between the United States Dep't of Justice and the City of Buffalo, N.Y., paras. 65-67 (Sept. 19, 2002) [hereinafter Buffalo MOA], available at http://www.usdoj.gov/crt/split/documents/buffalo_police_agreement.htm; Memorandum of Agreement Between the United States Dep't of Justice and the City of Cincinnati, Ohio, paras. 113-117 (Apr. 12, 2002) [hereinafter Cincinnati MOA], available at http://www.usdoj.gov/crt/split/Cincmoafinal.htm.
64. See, e.g., United States v. City of Detroit, No. 03-72258, paras. 131-137 (E.D. Mich. July 18, 2003) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/dpd/detroitpd_uofwdcd_613.pdf (providing for and describing duties of an independent monitor); Memorandum of Agreement Between the United States and the City of Villa Rica, Ga., paras. H. 1-8 (Dec. 23, 2003), available at http://www.usdoj.gov/crt/split/documents/villa_rica_moa.pdf (same).
65. See supra note 53; see also, e.g., United States v. City of Detroit, No. 03-72258, para. 7 (E.D. Mich. July 18, 2003) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/dpd/detroitpd_uofwdcd_613.pdf (noting the sending of three technical assistance letters prior to the consent decree); Cincinnati MOA, supra note 58, para. 4 (noting the sending of a technical assistance letter prior to the agreement).
66. See supra note 53; see also, e.g., V.I. Letter, supra note 48 (providing recommendations and characterizing the investigation as ongoing); Letter from Shanetta Y. Cutlar, Chief of Special Litig. Section of Civil Rights Div., to Frank James, Counsel for Alabaster, Ala. Police Dep't (Nov. 9, 2004) [hereinafter Alabaster Letter], available at http://www.usdoj.gov/crt/split/documents/split_alabaster_talet_11_09_04. pdf (same); Letter from David N. Kelley, United States Attorney for S. Dist. of N.Y., to Gerard J. Pisanelli, Counsel for Beacon Police Dep't (June 21, 2005), available at http://www.usdoj.gov/crt/split/documents/split_beacon_ta_letter_6-21-05. pdf (same).
67. Letter from Shanetta Y. Cutlar, Chief of Special Litig. Section of Civil Rights Div., to Stu Gallaher, Chief of Staff for the Mayor of Easton, Pa., at 1 (Nov. 26, 2007), available at http://www.usdoj.gov/crt/split/documents/easton_talet_11-26-07.pdf (providing "recommendations . . . not previously memorialized in our earlier communications" but with no mention of whether a § 14141 violation had been determined); Letter from Steven H. Rosenbaum, Chief of Special Litig. Section of Civil Rights Div., to Alejandro Vilarello, City Attorney for Miami, Fla., at 2 (Mar. 13, 2003) [hereinafter Miami Letter], available at http://www.usdoj.gov/crt/split/documents/miamipd_techletter.pdf ("This letter is therefore preliminary in nature and does not reach any conclusion about whether there is a violation of Section 14141."); Letter from Steven H. Rosenbaum, Chief of Special Litig. Section of Civil Rights Div., to William R. Martin, Counsel for Cincinnati Police Div., at 1 (Oct. 23, 2001), available at http://www.usdoj.gov/crt/split/cincita.php (commenting that the letter's purpose is to provide "significant recommendations . . . at this preliminary stage of the investigation under 42 U.S.C. § 14141").
68. See United States v. City of Steubenville, Ohio, No. C2-97-966 (S.D. Ohio Sept. 4, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/steubensa.htm; Cincinnati MOA, supra note 58; Letter from Shanetta Y. Brown Cutlar, Acting Chief of Special Litig. Section of Civil Rights Div., to Gary Wood, Corp. Counsel for Portland, Me., at 2 (Mar. 21, 2003), available at http://www.justice.gov/crt/split/documents/portland_ta_ltr.pdf; Letter from Shanetta Y. Brown Cutlar, Acting Chief of Special Litig. Section of Civil Rights Div., to Michael T. Brockbank, Schenectady Corp. Counsel (Mar. 19, 2003), available at http://www.usdoj.gov/crt/split/documents/schenectady_ta.pdf; U.S. Dep't of Justice, Special Litigation FAQs, supra note 40 ("Our police misconduct investigations focus on a number of different types of law enforcement violations of citizens' civil rights, including excessive force (such as excessive use of deadly force, pepper spray, or improper use of canines), racially discriminatory behavior
69. The memoranda and decrees also contain additional recommendations for reform that are particular to the misconduct and deficiencies of the department at issue. See, e.g., United States v. Prince George's County, Md., No. RWT 04 cv 185 (D. Md. Mar. 11, 2004) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/pgpd/pg_consent_decree.pdf (providing recommendations regarding canine section policy, procedures, and deployments); United States v. City of Los Angeles, No. 00-11769 GAF, paras. 106-107 (C.D. Cal. June 15, 2001) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/laconsent.php (detailing particular recommendations regarding management of gang units); Memorandum of Agreement Between the United States Dep't of Justice and the Dist. of Columbia, paras. 149-159 (June 13, 2001) [hereinafter Dist. of Columbia MOA], available at http://www.usdoj.gov/crt/split/documents/dcmoa.htm (providing recommendations for specialized mission units).
70. The number and kinds of performance indicators that are collected pursuant to an early intervention system vary from department to department, but the Justice Department has usually required or recommended two types of data: data on primary officer conduct, like uses of force, officer or suspect injuries, vehicular pursuits, weapons discharges, arrests (and their statutory basis), stops, and searches; and data on performance measures, like commendations, complaints, civil suits, criminal charges, and disciplinary actions. The Justice Department also usually requires that the data be searchable by officer, supervisor, squad, and shift, to allow the police department to identify the source of a pattern of misconduct. These systems are usually focused on retraining or counseling officers rather than disciplining them. See WALKER, supra note 1, at 103-05; see also INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 49-50.
71. See, e.g., United States v. New Jersey, No. 99-5970 (MLC), paras. 73-74 (D. N.J. Dec. 30, 1999) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/jerseysa.htm (detailing procedures for initiating potential misconduct allegations, conducting such an investigation, and evaluating such claims); United States v. City of Steubenville, Ohio, No. C2-97-966, paras. 33-63 (S.D. Ohio Sept. 4, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/steubensa.htm (same); id. paras. 17, 21 (requiring measures to evaluate the effectiveness of training particularly in regard to police misconduct and new policies regarding use of force); United States v. City of Pittsburgh, No. 2:97-cv-00354-RJC, para. 44 (W.D. Pa. Apr. 16, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/pittssa.htm (requiring the city to maintain records documenting all the complaints and investigations of misconduct since 1986); id. para. 36 ("The [police department] shall train all officers in integrity and ethics, cultural diversity, and verbal de-escalation . . . ."); Dist. of Columbia MOA, supra note 64, paras. 36-40 (requiring further development of use of force training); Letter from Shanetta Y. Cutlar, Chief of Special Litig. Section of Civil Rights Div., to Michael O'Brien, Mayor of Warren, Ohio, at 3-5 (Mar. 2, 2006), available at http://www.usdoj.gov/crt/split/documents/wpd_talet_3-2-06.pdf (recommending updated policies on the use of force to provide greater guidance to police officers).
72. Compare United States v. City of Pittsburgh, No. 2:97-cv-00354-RJC, para. 77 (W.D. Pa. Apr. 16, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/pittssa.htm (requiring Pittsburgh to communicate standards and educate officers on the requirements of the consent decree), with Letter from Shanetta Y. Cultar, Chief of Special Litig. Section of Civil Rights Div., to Marc A. Ott, City Manager of Austin, Tex. (Dec. 23, 2008) (proposing similar recommendations in encouraging revision of use of force policies and trainings).
73. See Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department "Pattern or Practice" Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3 (2003) (describing new paradigm of accountability as conceptual framework behind § 14141 reforms).
74. See, e.g., Armacost, supra note 16, at 457 ("[P]erhaps the most promising legal mechanism [for addressing misconduct] is the newly created equitable remedy made available through 42 U.S.C. § 14141."); Jeffries & Rutherglen, supra note 27, at 1418-21; Livingston, supra note 42, at 820 ("Section 14141 represents an important new remedial tool that offers enhanced opportunities for the radical reform of lax police administrative practices."); William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 538 n.134 (2001) ("The best legal tool for regulation at the department level is neither the exclusionary rule nor damages-the two remedies whose merits are so extensively debated in the law reviews-but injunctions. That is why the passage of 42 U.S.C. § 14141 (1994) . . . may be more significant, in the long run, than Mapp v. Ohio, which mandated the exclusion of evidence obtained in violation of the Fourth Amendment." (citation omitted)).
75. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781, 798 (2006).
76. See, e.g., Brandon Garrett, Remedying Racial Profiling, 33 COLUM. HUM. RTS. L. REV. 41, 100-01 (2001); Gilles, supra note 9, at 1386-87; Jeffries & Rutherglen, supra note 27, at 1416; Simmons, supra note 9, at 493-94.
77. Garrett, supra note 71, at 100
78. Myriam E. Gilles, In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies, 35 GA. L. REV. 845, 876 (2001) [hereinafter Gilles, In Defense]; Myriam E. Gilles, Representational Standing: U.S. ex. rel. Stevens and the Future of Public Law Litigation, 89 CAL. L. REV. 315, 365 n.257 (2001) [hereinafter Gilles, Representational Standing]; David Rudovsky, Litigating Civil Rights Cases to Reform Racially Biased Criminal Justice Practices, 39 COLUM. HUM. RTS. L. REV. 97, 118-19 (2007); Simmons, supra note 9, at 493.
79. See Gilles, supra note 9, at 1408, 1410; Walker, supra note 68, at 52.
80. See Armacost, supra note 16, at 531; Garrett, supra note 71, at 100; Gilles, In Defense, supra note 72, at 876-77, 879; Gilles, Representational Standing, supra note 72, at 365; Jeffries &
81. See OFFICE OF THE INSPECTOR GEN. & OFFICE OF PROF'L RESPONSIBILITY, U.S. DEP'T OF JUSTICE, AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING AND OTHER IMPROPER PERSONNEL ACTIONS IN THE CIVIL RIGHTS DIVISION 8 tbl.1 (2008), available at http://www.usdoj.gov/opr/oig-opr-iaph-crd.pdf; UNITED STATES ATTORNEYS' MANUAL, supra note 41 (describing the many activities of the Special Litigation Section); U.S. Dep't of Justice, Civil Rights Div., Special Litigation Section Overview, http://www.usdoj.gov/crt/split/overview.php (last visited Oct. 13, 2009) (describing the Section's extensive activities in its multiple other litigation programs).
82. It is a premise of this paper that significantly more police departments have engaged in a pattern or practice of misconduct than the Justice Department has yet investigated or reformed. Were this not true, there would be no reason to expand § 14141 either directly or by inducing additional departments to reform. This premise reflects a widespread, if sometimes implicit, scholarly consensus that systemic misconduct is common in large police departments. See, e.g., Armacost, supra note 16, at 454; Gilles, supra note 9, at 1408; Walker, supra note 68, at 52. Unfortunately, insufficient data exist to evaluate this assumption.
83. See Gilles, supra note 9, at 1410 ("In the absence of a massive (and politically improbable) infusion of capital resources into the detection and investigation of unconstitutional police patterns and practices, the current § 14141 regime appears doomed from the outset." (footnote omitted)).
84. See A. Mitchell Polinsky & Steven Shavell, The Economic Theory of Public Enforcement of Law, 38 J. ECON. LITERATURE 45-47 & n.7 (2000).
85. Throughout much of the Article, I treat "police departments" as the entities that decide to reform and engage in reform. Of course, police departments are part of municipal governments, and other actors play a significant role in these activities. I consider some of the issues this complexity raises in Part II.E., infra.
86. The particular costs and benefits for any given municipality will vary tremendously based on their circumstances and utility functions, and those costs and benefits are difficult to assess. As a result, a municipality may overestimate the expected benefits of police misconduct, such as the value of illegal searches for efficient law enforcement, or underestimate its costs, such as the law enforcement effect of community mistrust. Deterrence theory predicts municipalities will act on their estimations, accurate or not, and legal regulation intended to deter must be directed at those perceptions. See Polinsky & Shavell, supra note 78, at 68. This is usually done by shaping the reality on which those assessments are based.
87. While the federal government may educate cities to prevent them from overestimating the benefits of misconduct or make law enforcement strategies that reduce misconduct comparatively more attractive, it cannot easily lower the real benefits of engaging in misconduct.
88. A full investigation is intrusive and costly for a police department no matter how it is resolved. Police departments will therefore assess their expected costs under § 14141 by considering the probability that the Justice Department will conduct a full investigation using § 14141, not just the probability that the Justice Department will file suit against the department. By contrast, a preliminary assessment's costs are insignificant for the department. The cost and probability of a preliminary assessment can therefore largely be ignored.
89. In calculating the likely costs of being investigated and sued, municipalities consider the likelihood that if they are investigated, they may not be charged with a § 14141 violation, and that if they are charged, they may negotiate an outcome with the Justice Department that avoids litigation over liability or remedies. Any alternative to a fully litigated suit will substantially lower the transaction, reputational, and uncertainty costs for a municipality and may result in less costly remedial measures and monitoring as well. No municipality has yet litigated liability and remedies in a § 14141 case. Additionally, it is likely that the expected impact of § 14141 is actually greater than the product of the expected cost of an investigation and its perceived probability, c x p. The Justice Department will not investigate cities at random. Instead, to use resources efficiently, it will use preliminary assessments and other informal indicia of misconduct to choose cities with more misconduct to investigate. Assuming it is at all successful in selecting cities with misconduct for full investigation, then the probability that a department will be investigated rises with, and is therefore an increasing function of, its level of misconduct (p = p[m]). Moreover, if departments with more systemic misconduct also face additional costs during the Justice Department's investigation or are more costly to fix than departments with less misconduct, then c, the cost that a department will face if it is targeted, is also likely an increasing function of its misconduct (c = c[m]). If c and p are correlated with each other in this way, the expected impact of § 14141 on a municipality will be the expected product of cost and probability, E = c[m] x p[m], which will be greater than E[c] x E[p], since both cost and probability are strictly increasing with respect to the degree of misconduct.
90. See Polinsky & Shavell, supra note 78, at 53
91. Richard Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1195, 1209 (1985).
92. Fines are a low-cost means of imposing costs on victims; imprisonment is a highercost means of doing so, but each unit of imprisonment imposes a fixed marginal cost.
93. Polinsky & Shavell, supra note 78, at 71-72. Thus, it is easier to deter additional drunk driving by increasing the fine one pays if caught than it is to do so by putting more police officers on the road.
94. U.S.C. § 14141(b) (2006). In Part III.B.2, infra, I consider whether it makes sense to amend § 14141 to add fines in order to provide the Justice Department with means for increasing c.
95. Presumably, a city might agree to more costly measures in settling a § 14141 investigation or suit, but only if the total cost of the suit to the city, including the savings in transactional and reputational costs achieved by settling, were lower than the total cost the department would expect to face if the suit were litigated.
96. See, e.g., 28 U.S.C. § 1927 (2006) (stating that an attorney in a federal case may be liable for the excessive costs and attorneys fees of the other party if he or she "multiplies the proceedings in any case unreasonably and vexatiously"); FED. R. CIV. P. 11 (making it impermissible to enter a pleading or make a motion in federal court for "any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation"); MODEL RULES OF PROF'L CONDUCT R. 3.2 (2007) ("A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.").
97. See Henrik Lando & Steven Shavell, The Advantage of Focusing Law Enforcement Effort, 24 INT'L REV. L. & ECON. 209 (2004) (demonstrating that when resources are below the threshold necessary to create an expected cost sufficient to deter wrongdoers, it will be more efficient to focus law enforcement efforts on a subgroup of possible violators of the law, even if the frequency of violations is no higher in that subgroup). In the context of policing reform, there is no obvious threshold below which no deterrence would take place. hus, arguably, even marginal deterrence could encourage some marginal reform. However, since most of the low-cost reforms-like implementing new use-of-force policies-are unlikely to make much difference without some high-cost investment, such as improved training and accountability, it is likely that there is a resource threshold for incentivizing effective reforms and that p cannot rise above that threshold as § 14141 is presently used given how few suits can be brought.
98. Changing use of force policies, for example, imposes trivial costs; training officers to comply with a new policy imposes greater ones; and creating an early warning system to detect officers who may be using excessive force imposes very substantial costs.
99. Below some threshold of expense, however, these reforms are likely to be ineffectual at significantly reducing misconduct. See supra note 90.
100. Law enforcement leaders have considered using techniques very similar to the worst list proposed here to concentrate law enforcement resources and deter crime. See David M. Kennedy, Old Wine in New Bottles: Policing and the Lessons of Pulling Levers, in POLICE INNOVATION: CONTRASTING PERSPECTIVES 155, 165 (David Weisburd & Anthony A. Braga eds., 2006) (describing "pulling levers" strategic policing as a way around the roblem of inadequate deterrence created by inadequate resources); id. ("It may be possible to make sure that the worst 100 domestic abusers in a jurisdiction get very special attention, and then let the next 1000 know that behavior on their part will win them a place in the top group. It may be possible to warn a dozen street drug markets that there will be a crackdown in a week, and that they can protect themselves by shutting down before it comes.").
101. See supra note 8 and accompanying text.
102. Of course, much more data are available about some kinds of misconduct than others.
103. See Harmon, supra note 12, at 1127-44 (describing the difficulty of assessing the reasonableness of a use of force under current doctrine).
104. Prioritizing some types of misconduct focuses the Justice Department's resources. In choosing which types of misconduct to prioritize, the Justice Department should consider that suing departments is an expensive and intrusive way to promote reform. It is best used against misconduct that has institutionalized causes, but is difficult to reach by other legal means. The excessive use of non-deadly force would meet these criteria. So would abusive high-volume, low-yield investigative techniques, like unreasonable Terry frisks.
105. See Kenneth Adams, A Research Agenda on Police Use of Force, in NAT'L INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, USE OF FORCE BY POLICE: OVERVIEW OF NATIONAL AND LOCAL DATA 61, 65 (1999) [hereinafter Adams, Research] (discussing the need for multiple measures of police misconduct to provide a complete picture of the extent of the problem); id. ("Sometimes it is possible to combine a variety of measures into an index that is robust because the combined errors of the individual measures tend to cancel each other out."); Kenneth Adams, Measuring the Prevalence of Police Abuse of Force, in POLICE VIOLENCE, supra note 16, at 52, 79-80 [hereinafter Adams, Measuring]; Kenneth Adams, What We Know About Police Use of Force, in USE OF FORCE BY POLICE: OVERVIEW OF NATIONAL AND LOCAL DATA, supra, at 1, 10 (discussing some of the various data sources available to estimate police use of excessive force). Such combined data may over time also contribute to the research on whether reducing misconduct improves or reduces effective crime control by a department.
106. In order to strengthen the measures of misconduct, the Justice Department should also fund further research on useful proxies for misconduct.
107. See 42 U.S.C. § 3732(c) (2006) (describing the duties and functions of the Bureau of Justice Statistics). Pursuant to this authority, the Bureau of Justice Statistics collects and analyzes some department-specific data about police operations through the Law Enforcement Management and Statistics (LEMAS) survey. See, e.g., BRIAN A. REAVES & MATTHEW J. HICKMAN, U.S. DEP'T OF JUSTICE, LAW ENFORCEMENT MANAGEMENT AND ADMINISTRATIVE STATISTICS, 2000: DATA FOR INDIVIDUAL STATE AND LOCAL AGENCIES WITH 00 OR MORE OFFICERS (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/lemas00.pdf. Other data about police conduct are derived from citizen complaint surveys. See, e.g., SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, at tbl.1.0004.2002 (2002), http://www.albany.edu/sourcebook/pdf/t100042002.pdf (tracking citizen complaints about police use of force in large law enforcement agencies); id. at tbl.1.0005.2002 (tracking dispositions of citizen complaints in large agencies). Data about police conduct are also available from the International Association of Chiefs of Police database project. See Mark. Henriquez, IACP National Database Project on Police Use of Force, in USE OF FORCE BY POLICE: OVERVIEW OF NATIONAL AND LOCAL DATA, supra note 98, at 19 (1999).
108. See REAVES, supra note 9; REAVES & HICKMAN, supra note 100; U.S. DEP'T OF JUSTICE, 2003 SAMPLE SURVEY OF LAW ENFORCEMENT AGENCIES (2003), http://www.ojp.usdoj.gov/bjs/pub/pdf/lem03q.pdf. In addition, the survey is given only to a representative sample of departments smaller than 100 officers. See Robert H. Langworthy, LEMAS: A Comparative Organizational Research Platform, JUST. RES. & POL'Y, Fall 2002, at 21 (2002) (describing LEMAS origins, dimensions, and limitations). The Justice Department, for example, is required to collect and publicly report data about the use of force in police departments, see 42 U.S.C. § 14142 (2006), but departments are not required to provide this information, see 145 CONG. REC. 20,139 (1999). Police departments are presently effectively required to report to the Justice Department information regarding the death of individuals in custody, but this provision represents an exception to the general rule. See infra note 109.
109. See, e.g., Stuntz, supra note 70, at 834 ("Data collection is the key. If adequate records of police stops and uses of force are kept, it should be possible to identify large-scale deviations from industry norms, and to target the offending police departments with injunctions like the ones the Justice Department has employed in § 14141 cases."); id. at 834.264 (describing the proposition that data collection is essential as long-held conventional wisdom among police violence experts); see also NAT'L RES. COUNCIL, supra note 8 (advocating legislation requiring police departments to report shootings by officers); Adams, Research, supra note 98, at 63; Adams, Measuring, supra note 98, at 77-83; Armacost, supra note 16, at 531-32; William A. Geller & Hans Toch, Understanding and Controlling Police Abuse of Force, in POLICE VIOLENCE, supra note 16, at 292, 297-302 (describing the need for national data on the use of force, advocating improvements to the current national data collection system, and recommending improving and standardizing arrest reports, use of force reports, service calls, field contacts, and citizen complaint procedures to permit useful national data for comparing departments). There have been some voluntary efforts to create national databases on some aspects of misconduct, but the results have been limited. See,. g., Henriquez, supra note 100, at 19-20 (describing development of voluntary and nonymous national use of force database by International Association of Chiefs of Police for quantifying types and uses of force by police).
110. Congress has considered similar proposals before. See 145 CONG. REC. 20,139-40 (1999) (amendment offered and withdrawn by Rep. Davis of Illinois that would make federal funding conditional on providing data to the Justice Department).
111. Presently, police departments use a variety of computer software programs to maintain internal data and these databases would make it difficult to export data to the Justice Department in compatible formats. The Justice Department could considerably ease the technical difficulties of collecting and reporting data by facilitating the development of flexible, low-cost software for collecting and reporting data and by providing technical assistance on the use of such software.
112. Such information would also have secondary benefits to large departments interested in effective internal management and accountability. Notably, although the Justice Department has often advocated additional data collection as part of its recommended remedial measures, usually as part of an early intervention system, collecting and reporting for the worst list would be much less costly than creating such a system. The data required for an early intervention system is more extensive and must be searchable by a wider variety of fields. It must provide a way of flagging problems within the department, such as a squad that appears to use force too often, or a supervisor who fails to discipline the officers beneath him. This kind of data analysis requires a significant information technology infrastructure. See supra note 65 and accompanying text. The same is unlikely to be true for the data required by the Justice Department in a national reporting system. Such data need not be officer-specific and largely would involve disclosing policies and aggregating reports of events that satisfy particular criteria.
113. This risk may not be as great as it initially seems. Police departments may distort data in two separate ways: individual officers may fail to collect relevant data adequately, or administrative and supervisory officials may underreport the data. Much of the data a national reporting system would likely require, however, would be as useful to the department as it is to the federal government, making under-collection of the data self-defeating. See Geller & Toch, supra note 102, at 299. In addition, some forms of misconduct stem from institutional deficiencies that should not be correlated with weak data reporting. The use of excessive force, for example, may arise from poor supervision and tactical decision-making in crisis situations, from weak training on conflict avoidance, or from inadequate policies governing the use of force, but there is no reason to believe that a department with those deficiencies also permits officers not to report using force. If that correlation is absent, departments with those deficiencies may be no more likely to under-collect data negligently than departments without them. Once data are collected, police administrative officials and supervisors may be reluctant to risk individual liability to underreport data.
114. Many statutes go beyond this reporting scheme to require that actors report not only primary conduct, but violations of the law. See, e.g., Consumer Product Safety Act, 15 U.S.C. § 2064(b) (2006); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9603(b) (2006) (penalizing failure to report hazardous releases). See generally Louis Kaplow & Steven Shavell, Optimal Law Enforcement with Self-Reporting of Behavior, 102 J. POL. ECON. 583 (1994) (discussing the theoretical advantages of requiring self-reporting of violations and describing enforcement of selfreporting as manageable by lesser penalties for self-reported violations).
115. See, e.g., 18 U.S.C. § 1001 (2006) (making it a crime punishable by up to eight years of imprisonment to willfully make a materially false representation in any matter within the jurisdiction of a federal agency).
116. See 42 U.S.C. § 13704 (2006), which conditions certain grant money on providing the Justice Department with information regarding the death of any person who is killed during the process of arrest or while incarcerated. This Act was implemented by the Justice Department's Death in Custody Reporting Program, which collects detailed quarterly information from prisons and jails around the country on arrest-related deaths. While the initial legislation expired, the Justice Department has continued the data collection as part of an ongoing statistical series of the Bureau of Justice Statistics. See U.S. Dep't of Justice, Office of Justice Programs, 2009-2011 Deaths in Custody Reporting Program: State Prisons and Local Jails Solicitation, http://www.ojp.usdoj.gov/bjs/pub/html/dcrp09sol.htm (last visited Oct. 10, 2009) (description of reporting program by the Office of Justice Programs). U.S. Representative Bobby Scott has introduced the Death in Custody Reporting Act of 2009 to reauthorize the 2000 Act, extend it to subjects of federal custody, and require the Attorney General to study how future deaths may be reduced. Death in Custody Reporting Act of 2009, H.R. 738, 111th Cong. (2009).
117. See, e.g., 42 U.S.C. § 13031 (2006) (requiring professionals in federally operated facilities to report suspected child abuse).
118. The Justice Department already carries out a Police-Public Contact Survey. The survey questions a nationally representative sample of more than 60,000 individuals in order to obtain detailed information about direct contacts between police officers and the public, including whether force was used by the officer. Especially if expanded, it is a potentially useful source of data for verifying self-reporting by police departments. For a sample report of results from the survey, see MATTHEW R. DUROSE ET AL., U.S. DEP'T OF JUSTICE, SPECIAL REPORT: CONTACTS BETWEEN POLICE AND THE PUBLIC 2005, at 2 tbl.1, 7 & tbl.9 (2007) (indicating that, in 2005, 19% of Americans had direct contact with a police officer, force was used or threatened against 1.6% of them, and 83% of those felt the force was excessive).
119. U.S. Dep't of Justice, Special Litigation FAQs, supra note 40. According to the website, the Justice Department selects among departments with credible allegations of a pattern or practice of unconstitutional conduct by "consider[ing] a variety of factors, including the seriousness of the alleged misconduct, the type of misconduct alleged, the size and type of law enforcement agency, the amount of detailed, credible information available and the potential precedential impact." Id.
120. See Armacost, supra note 16, at 532 ("[M]andatory reporting is the only way to ensure that interventions like § 14141 suits are deployed against cases 'other than the headline grabbers . . . .'" (footnote omitted)).
121. See id. at 531-32.
122. Of course, criticisms of the Justice Department's current practice are equally plagued by bad data. We do not know how many police departments have significant indicia of misconduct, so we do not know what percentage of those departments the Justice Department has sued. We do not know which police departments are engaged in the worst misconduct, so we cannot know if those suits are misdirected. It seems plausible that a number of dysfunctional departments remain, but we cannot know for sure. Without data, criticism of the Justice Department's § 14141 enforcement-like the enforcement itself-lacks a sound social science basis.
123. Presumably, if Congress does not authorize the Justice Department to require data collection and reporting or fund management of a national database, the Justice Department could nevertheless implement a kind of "worst-first" strategy based on the much more limited information now available. It could gather data on some indicia of misconduct during its preliminary assessments following complaints and then choose the apparently worst departments from among those about which it receives credible complaints. Some police departments do not collect the appropriate data, but the Justice Department could provide some incentive to do so by assuming that unreported information would indicate misconduct. This strategy would not identify the worst departments, but it would concentrate resources on what are likely to be the worst of those that come to the Justice Department's attention.
124. For example, one might approach worseness by evaluating the severity and frequency of misconduct either per officer or for the whole department or by weighing both numbers. The first method would likely lead to a worst list heavily populated by small departments and the second by big departments. Suing a large department consumes more resources than suing a smaller one, but it often reaps the most rewards in direct misconduct reduction. On the other hand, the fewer departments the Justice Department sues, the slower the turnover on the worst list and the weaker the incentive for reform for departments below the top.
125. While Myriam Gilles has suggested that politics may have influenced the enforcement of the statute, she has not attributed this influence to this type of lobbying. See Gilles, supra note 9, at 1409-11.
126. Cf. STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 281-82 (1987) (noting that while injurers often have the natural advantage in knowledge, "in certain contexts information about risk will not be an obvious by-product of engaging in activities but rather will require effort to develop or special expertise to evaluate. . . . A social authority may learn about such risks by committing resources to the task . . . whereas injurers may have an insufficient motive to obtain information . . . ." and suggesting that in those cases ex ante regulation will be superior to ex post liability in reducing harm).
127. As suggested here, the § 14141 safe harbor would be more like a publicly-stated prosecution policy than a legally binding regulation for the Justice Department. Compare the Petite policy, a Justice Department policy limiting the circumstances in which prosecutors may bring charges against individuals already charged by the state for the same acts, see, e.g., Rinaldi v. United States, 434 U.S. 22, 27-28 (1977) (describing Petite policy as a form of "self-restraint" that "limits the federal prosecutor in the exercise of his discretion to initiate, or to withhold, prosecution for federal crimes" after local prosecution, despite federal legal authority to bring charges), with SEC Rule 175, which shields companies from legal liability for forward-looking statements made in good faith, see 17 C.F.R. § 230.175(a) (2008). The advantage of this weaker version of a safe harbor is that it likely requires no new authorization, only the Justice Department's judicious exercise of discretion in litigating under § 14141. A stronger safe harbor might create somewhat stronger incentives, but it would require additional legislation and might reduce the Justice Department's flexibility in refining the safe harbor over time.
128. See generally Robert Innes, Self-Policing and Optimal Law Enforcement When Violator Remediation Is Valuable, 107 J. POL. ECON. 1305 (1999) (arguing that lowering sanctions for violators that undertake measures to reduce harm before they are caught can be an efficient means of achieving early remediation and reducing additional harm for the same governmental expenditure that monitoring resources requires).
129. See Polinsky & Shavell, supra note 78, at 66 (noting that "[s]elf-reporting can be induced by lowering the sanction for individuals who disclose their own infractions. Moreover, the reward for self-reporting can be made small enough that deterrence is only negligibly reduced" and "self-reporting lowers enforcement costs because, when it occurs, the enforcement authority does not have to identify and prove who the violator was"); see also Kaplow & Shavell, supra note 107, at 584.
130. See supra note 83.
131. See supra note 91 and accompanying text.
132. Compare United States v. City of Detroit, No. 03-72258, para. 80 (E.D. Mich. July 18, 2003) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/dpd/detroitpd_uofwdcd_613.pdf (requiring twenty-six data fields), with Mt. Prospect MOA, supra note 57, para. 22 (requiring fourteen data fields), and Miami Letter, supra note 62, at 19 (suggesting four data fields).
133. Having more data fields does not necessarily improve an early intervention system. Additional fields can be costly to collect and be more technologically complex to maintain and use. To the degree this complexity overwhelms the capacity of the department, additional fields may have the effect of making an early intervention system too costly, cumbersome, or complicated to work at all.
134. See, e.g., 18 U.S.C. §§ 241-242 (2006); 42 U.S.C. §§ 2000d, 3789d (2006).
135. In structural reform litigation more broadly, private plaintiffs associated with advocacy groups are often repeat players and significantly influence the reforms imposed by courts. While private suits have had some influence on the Justice Department's § 14141 practice, private actors have few of the Justice Department's distinctive advantages in developing remedial measures and improving them over time in the context of policing.
136. See Walker, supra note 68, at 29.
137. See supra notes 46-48 and accompanying text.
138. I do not include as an additional cost of a proactive strategy the costs to police departments of collecting data on misconduct because as described above, see text accompanying notes 8, 112-116, such data are essential to any coherent use of § 14141 to reduce misconduct.
139. Presumably, if resources devoted to § 14141 dropped below the level necessary to maintain a worst list and create a credible threat of suit to some departments on it, then existing § 14141 litigation strategy would be more efficient than the worst-first policy per department, though under such conditions neither strategy would achieve much reform.
140. See, e.g., United States v. City of Steubenville, Ohio, C2-97-966, paras. 12-81 (S.D. Ohio Sept. 4, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/steubensa.htm (recommending changes for improved data collection, management and supervision, training, and complaint and investigation procedure); United States v. City of Pittsburgh, No. 2:97-cv-00354-RJC, paras. 12-69 (W.D. Pa. Jan. 17, 1997) (order entering consent decree), text available at http://www.usdoj.gov/crt/split/documents/pittssa.htm (same); Buffalo MOA, supra note 58, paras. 14-52 (recommending changes for improved data collection, management and supervision, training, and complaint and investigation procedure); Cincinnati MOA, supra note 58, paras. 12-108 (same); Alabaster Letter, supra note 61, at 5-12 (encouraging the improvement of policies, training, and data collection on use of force); Letter from Steven H. Rosenbaum, Chief of Special Litig. Section of the Civil Rights Div., to Subodh Chandra, Dir. of Law Dep't of Cleveland, Ohio (July 23, 2002), available at http://www.usdoj.gov/ crt/split/documents/cleveland_uof.pdf (same).
141. In the past, § 14141 consent decrees and memoranda of agreement have imposed the monitoring costs on the police departments. A safe harbor mechanism could equally require that such costs be borne by participants. Whether the safe harbor is an efficient way of improving social welfare, however, is driven by the total amount of these costs rather than by their distribution.
142. The relevant actors and their relationships to one another vary with the structure of the local government. In a mayor-council government, which usually occurs in the smallest and the largest municipal governments, the mayor or the council will have authority to appoint and dismiss the police chief, and will prepare the police department's budget. See 2A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 9.17 (3d ed. 1979). In a council/city manager government, those responsibilities will usually rest with a professional city manager, though the budget will be approved by the council. Id. at § 9.21; DAVID R. MORGAN ET AL., MANAGING URBAN AMERICA 68-71, 81 (6th ed. 2007).
143. See Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305, 308-09 (1976).
144. See Robert J. Barro, The Control of Politicians: An Economic Model, 14 PUB. CHOICE 19 (1973) (describing political agency problem, and elections as a means of controlling political agents).
145. Levinson, Making Government Pay, supra note 21, at 356-57.
146. Id. at 355-56.
147. See supra notes 21-24 and accompanying text.
148. U.S. COMM'N ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS?: A REPORT ON POLICE PRACTICES 133 (1981) (quoting Philadelphia city solicitor as describing civil damages as a "cost of doing business" (internal citation omitted)); see also Armacost, supra note 16, at n.117 and accompanying text.
149. See Barro, supra note 138.
150. In enforcing § 14141, the Justice Department could also take advantage of agency costs to further incentivize reform by providing additional rewards to police chiefs and mayors that embrace proactive reform. For example, the Justice Department could develop an accreditation program that recognized "best departments" to supplement its § 14141 policy targeting worst ones. An accreditation program would generate additional political and professional benefits for police chiefs and reputational benefits for mayors in cities that exceed federal civil rights standards for liability in reducing misconduct and meet specific measures of success. Such accreditation is now carried out by many states and the Commission on Accreditation for Law Enforcement Agencies. A similar federal program has been proposed in the past. See Law Enforcement Trust and Integrity Act of 2000, H.R. 3927, 106th Cong. (2000) (directing the Attorney General to develop national accreditation standards for law enforcement agencies). Accreditation is a way of rewarding and thereby encouraging professional excellence in police departments. Most accreditation mechanisms incentivize the best departments, the ones that are nearest to meeting the credentialing standards set out by the accreditation agency, rather than the departments most in need of reform. As a result, although such a mechanism may be a useful supplement to § 14141, it would be ineffective at addressing the problem of systemic misconduct in police departments nationwide.
151. See Walker, supra note 68, at 6.
152. See 42 U.S.C. §§ 3711-3715a (2006). The Office of Justice
153. With respect to improving data on misconduct, the Justice Department has not used even its existing resources to maximum effect. For example, the Justice Department's voluntary data collection about police practices and police-citizen interactions through the Law Enforcement Management and Statistics Survey, the Census of Law Enforcement Training Academies, and the Census of State and Local Law Enforcement Agencies does not presently include many areas of inquiry that would be helpful to promoting policing reform. See, e.g., DUROSE ET AL., supra note 111; REAVES, supra note 9, at 8; REAVES & HICKMAN, supra note 100; BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, STATE AND LOCAL LAW ENFORCEMENT TRAINING ACADEMIES, 2006, at 11 (2009).
154. Of course, the research can also help to refine § 14141 enforcement by, for example, strengthening the indicia of misconduct used to formulate the worst list.
155. See supra text accompanying notes 63-68; infra text accompanying notes 170-174.
156. See INT'L ASS'N OF CHIEFS OF POLICE, supra note 13; U.S. DEP'T OF JUSTICE, supra note 1 (summarizing principles for promoting police professionalism with respect to uses of force, citizen complaints, internal management and accountability, data collection, and recruitment and hiring); WALKER ET AL., supra note 13; U.S. Dep't of Justice, Special Litigation FAQs, supra note 40 ("The Civil Rights Division has found that law enforcement agencies that have designed, implemented and enforced an effective program to prevent, detect, and ensure accountability for incidents of misconduct and other civil rights violations are unlikely to violate the pattern or practice statutes. The Department of Justice has helped focus attention on these issues through the publication in January 2001 of a guide to 'Principles for Promoting Police Integrity' with examples of promising police practices and policies." (citation omitted)).
157. Protecting Civil Rights was produced by the International Association of Chiefs of Police through a grant by the Justice Department. OJP and the National Institute of Justice provide funding to IACP and a variety of other non-profit organizations that provide technical assistance and training to police departments in order to promote best practices in policing. INT'L ASS'N OF CHIEFS OF POLICE, supra note 13, at 25 n.22.
158. The Federal Bureau of Investigation provides training to local police officers through both its National Academy, which "provides college-level training to mid-level state, local, and foreign police officers" at the FBI Academy in Quantico, Virginia, and the Field Police Training Program, which "provide[s] training assistance at local, county, and state law enforcement training facilities to improve the investigative, managerial, administrative, and technical skills of local officers." Federal Bureau of Investigation Frequently Asked Questions, http://www.fbi.gov/aboutus/faqs/faqsone.htm (last visited Aug. 30, 2009). Similarly, the Federal Law Enforcement Training Center, a part of the Homeland Security Department, provides basic and advanced training for local law enforcement agencies throughout the country. It too should be part of the federal effort to reduce police misconduct by lowering the cost of reform.
159. This coordination might best be achieved through a policing czar, perhaps in the Associate Attorney General's office or the Deputy Attorney General's office. Currently, the United States Attorneys' Manual states that Civil Rights Division civil sections coordinate their work with the Division's Criminal Section, the Office of Justice Programs, and the Office of Community Oriented Policing Services, see UNITED STATES ATTORNEYS' MANUAL, supra note 41, at 8-2.241, but it is not clear how well that coordination works or how it is facilitated outside the Civil Rights Division. The problem of coordinating federal efforts to reform police departments has been recognized before. See Law Enforcement Trust and Integrity Act of 2000, H.R. 3927, 106th Cong. § 801 (2000) (proposing a "Task Force on Law Enforcement Oversight" with members from the Special Litigation, Criminal, Employment, Disability Rights, and Coordination and Review Sections of the Civil Rights Division, the Office of Justice Programs, the Office of Community Oriented Policing Services, the Corruption/Civil Rights Section of the FBI, the Community Relations Service, and the unit within the Justice Department that serves as a liaison for civilian review boards).
160. See supra note 50.
161. This frequency represents the number of full investigations since the passage of the statute divided by the 2358 large departments. See REAVES, supra note 9, at 2 tbl.2 (reporting that there are 2358 departments nationwide with at least 50 officers). However, because two of the thirty-three departments, the Villa Rica Police Department in Georgia and the Beacon Police Department in New York, have fewer than fifty sworn police officers, FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORT: CRIME IN THE UNITED STATES, 2008 tbl.78 (2009), http://www.fbi.gov/ucr/cius2008/index.html, this calculation slightly overestimates the frequency in the relevant population. It would be more precise to say either that the relative frequency of an investigation among police departments with at least fifty officers is 1.3% (thirty-one investigations in 2358 departments) or that the relative frequency of an investigation among police departments with at least twenty-five officers is .7% (thirtythree investigations in 4662 departments). See REAVES, supra note 9.
162. The Justice Department has investigated cities ranging in size from around 11,000 residents (Villa Rica, Georgia) to almost 4 million (Los Angeles, California) with substantial variation in between. See U.S. Census Bureau, Population Estimates: Cities and Towns 2000-2006, http://www.census.gov/popest/cities/SUB-EST2006-4.html (last visited Aug. 30, 2009). The police departments investigated and sued have ranged in size from approximately thirty-two officers to more than 9000. FED. BUREAU OF INVESTIGATION, supra note 155. For comparison, there are seventy-nine departments each with 1000 or more officers in the United States that together employ approximately 30% of all full-time sworn officers and 3563 departments each with between twenty-five and 100 officers that together employ approximately 22% of all full-time sworn officers in the United States. See REAVES, supra note 9, at 2 tbl.2.
163. The Justice Department has targeted state, county, and local departments in urban, suburban, and rural areas. U.S. Dep't of Justice, Special Litigation FAQs, supra note 40.
164. While a significant number of the investigations have been in large industrial Midwest cities, including Pittsburgh, Columbus, Detroit, Cincinnati, and Cleveland, other investigations have been distributed throughout the country. See id.
165. See id. ("We exercise our discretion to prioritize certain investigations or certain types of allegations. In general, we consider a variety of factors, including the seriousness of the alleged misconduct, the type of misconduct alleged, the size and type of [the] law enforcement agency, the amount of detailed, credible information available and the potential precedential impact.").
166. While the Justice Department has clearly focused its § 14141 enforcement on only a few kinds of misconduct, it is unlikely that this type of concentration effectively focuses the expected costs of § 14141 on a finite group of departments. The vast majority of large departments will receive some complaints concerning excessive force, illegal stops and searches, and racial profiling. As a result, few departments will be eliminated from the pool of potential targets by the Justice Department's practice of focusing almost exclusively on these types of misconduct. Moreover, because these kinds of misconduct are difficult to assess and comparative data are largely unavailable, departments will have difficulty assessing p relative to other departments.
167. Many departments with high-profile incidents of misconduct have not been subject to investigation by the Justice Department, including, for example, the Chicago Police Department, see Armacost, supra note 16, at 478-90, the Oakland Police Department, see Liz Garone, Oakland's Police 'Riders' on Trial, WASH. POST, Jan. 26, 2003, at A10, and the Dallas Police Department, see Jennifer Emily, Convicted Ex-Cop to Begin Sentence, DALLAS MORNING NEWS, May 6, 2008, at 7B.
168. The Bush Administration not only reduced the actual probability and cost of a § 14141 investigation, it did much to minimize the perception of that probability and cost. When running for office, President George W. Bush expressed doubt about the appropriate role for § 14141 in regulating local police departments. See Eric Lichtblau, Politics, L.A. TIMES, June 1, 2000, at 5. A police department might reasonably have used his comments rather than the Justice Department's practice under the Clinton Administration to assess p and would have perceived p to be low. Moreover, the Bush Administration did not publicize investigations or their results. The Special Litigation Section's website, for example, has had only minor updates since 2003, and does not announce every investigation. Finally, the Bush Administration engaged in efforts to undermine existing consent decrees, further suggesting to those watching departments that the Administration was uninterested in enforcing § 14141 aggressively. See, e.g., Patrick McGreevy, LAPD Faces 3 More Years of Scrutiny, L.A. TIMES, May 16, 2006, at B1.
169. See supra notes 50-52 and accompanying text.
170. See supra note 53 and accompanying text.
171. See supra text accompanying note 62.
172. In a number of cases, the Justice Department took no public action. Presumably, some of these might have involved departments found not to have a pattern of misconduct and required no further action. If, however, the Justice Department sometimes failed to act in cases in which liability existed, then these non-action cases would further reduce the expected costs of an investigation for departments engaged in misconduct.
173. See Reauthorization of the Civil Rights Division of the United States Department of Justice: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 27 (2005) (prepared statement of R. Alexander Acosta, Assistant Attorney General, Civil Rights Division) (noting new approach to § 14141 cases based on cooperative model); Dan Horn, City Helped Tame DOJ's Fierceness, CINCINNATI ENQUIRER, June 9, 2003, available at http://www.enquirer.com/editions/2003/06/09/loc_dojchange09.html (describing change in Justice Department strategy in § 14141 investigations from adversarial to cooperative and compromising).
174. See, e.g., V.I. Letter, supra note 48 ("[W]e have made repeated requests for and are still awaiting receipt of a number of documents . . . . We would greatly appreciate production of these items as soon as possible in order to complete our investigation.").
175. Despite the Justice Department's practice of not maximizing the cost of a § 14141 suit for police departments, there is evidence that some police departments perceived a § 14141 reward for voluntary reform. At least two cities, Miami and Washington, D.C., have been investigated at their own initiative, suggesting that they expected rewards for coming forward and/or committing to reform. See Miami Letter, supra note 62; John Ashcroft, U.S. Attorney Gen., News Conference with Washington, D.C. Mayor Anthony Williams and Police Chief Charles Ramsey (June 13 2001), available at http://www.usdoj.gov/crt/split/mpdpressconf.php. In each case, the city had reason to estimate a higher than average probability of being sued: both departments are in larger cities with widely publicized civil rights problems. The Washington, D.C. Metropolitan Police Department approached the Justice Department in 1999, after a series of front-page Washington Post articles revealed a pattern of apparently unjustified deadly shootings in the late 1990s. See, e.g., David Jackson, Holes in the Files: Investigations of Police Shootings Often Leave Questions Unanswered, WASH. POST, Nov. 17, 1998, at A1; Jeff Leen, Moving Targets: Despite Department Rules, Officers Often Have Used Gunfire to Stop Drivers, WASH. POST, Nov. 16, 1998, at A1; Jeff Leen et al., District Police Lead Nation in Shootings: Lack of Training, Supervision Implicated as Key Factors, WASH. POST, Nov. 15, 1998, at A1. Miami approached the Justice Department in 2002, after a number of high-profile incidents received media and community attention. See, e.g., Dana Canedy, 11 Start Trial in Shootings by Miami Police Officers, N.Y. TIMES, Jan. 22, 2003, at A12. In both cases, cooperating with the Justice Department may have been perceived as a means to lower the costs of § 14141 enforcement. To the degree the departments accurately perceived Justice Department policy, these rewards for self-reporting may represent a limited strategy of raising the benefits of proactive reform for police departments.
176. See supra text accompanying notes 63-66.
177. Livingston, supra note 42, at 845 (observing that the decrees have certain requirements, such as training and policies on use of force, but leave the details unspecified).
178. See supra note 67 and accompanying text.
179. See U.S. DEP'T OF JUSTICE, supra note 1 (summarizing principles for promoting police professionalism with respect to uses of force, citizen complaints, internal management and accountability, data collection, and recruitment and hiring).
180. INT'L ASS'N OF CHIEFS OF POLICE, supra note 13.
181. See, e.g., Law Enforcement Trust and Integrity Act of 2000, H.R. 3927, 106th Cong. § 502 (2000); Gilles, supra note 9, at 1417-18.
182. It also permitted a prevailing defendant reasonable attorney's fees if the action was frivolous, unreasonable, or without foundation. Law Enforcement Trust and Integrity Act of 2000, H.R. 3927, 106th Cong. § 502 (2000); Law Enforcement Trust and Integrity Act of 1999, H.R. 2656, 106th Cong. § 501 (1999).
183. See, e.g., Hazel Trice Edney, On 100th Anniversary, NAACP Challenges First Black President, WILMINGTON J., Feb. 11, 2009, available at http://www.wilmingtonjournal.com/News/article/article.asp?NewsID=17812 &sID=3; Press Release, NAACP, NAACP National Board Member Testifies at Congressional Forum on Law Enforcement Accountability (May 12, 2008), available at http://www.naacp.org/news/press/2008-05-12/index.htm; Human Rights Watch, Statement in Support of the Law Enforcement Trust and Integrity Act of 2000 (Mar. 13, 2000), http://www.hrw.org/en/news/2000/03/13/statement-support-law-enforcement- trust-and-integrity-act-2000 (last visited Oct. 15, 2009).
184. See, e.g., Gilles, supra note 9, at 1414 ("[A]uthorizing . . . 'all aggrieved persons' to sue to enjoin unconstitutional 'patterns or practices[]' . . . would raise insurmountable constitutional problems under the equitable standing rule of Lyons . . . ." (footnote omitted)).
185. Gilles, supra note 9, at 1417-18; Gilles, Representational Standing, supra note 72, at 365-66. As an alternative, George Rutherglen and John Jeffries have encouraged private plaintiffs to tailor § 1983 cases narrowly to escape the Lyons equitable standing bar. See Jeffries & Rutherglen, supra note 27, at 1419-20.
186. See, e.g., Gilles, supra note 9, at 1386-87; Jeffries & Rutherglen, supra note 27, at 1421.
187. Gilles, supra note 9, at 1451-52 ("[T]here exist meaningful financial incentives for petitioners to initiate § 14141 claims. Most often, private § 14141 petitioners will have parallel damages actions based upon the same facts under federal civil rights laws or state law. A ruling on a § 14141 claim would be entitled to preclusive effect in those damages suits, providing a powerful incentive, in many cases, for the filing of a § 14141 petition." (footnote omitted)); see also Matthew J. Silveira, An Unexpected Application of 42 U.S.C. § 14141: Using Investigative Findings for § 1983 Litigation, 52 UCLA L. REV. 601 (2004) (advocating using information discovered during § 14141 investigations to pursue § 1983 suits for damages). Information that could be used in a § 1983 claim might arise out of a § 14141 action in a variety of ways: as information obtained during discovery, as findings of policy or admission of liability, or as part of settlement with a police department.
188. See supra text accompanying notes 137-142.
189. Similar collusion has been the subject of concern about structural reform litigation in other contexts, and scholars have been skeptical that judicial review is sufficient to eliminate the risk. See ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS WHEN COURTS RUN GOVERNMENT 156-57 (2003); Neal Devins, I Love You, Big Brother, 87 CAL. L. REV. 1283 (1999) (reviewing FEELEY & RUBIN, supra note 26).
190. Gilles, supra note 9, at 1432 ("The model proposed here would deputize only those individuals who have been injured by an unconstitutional police pattern or practice.").
191. See id. at 1451-52.
192. See id. at 1417-18.
193. Gilles assumes that reviewing initial proposals by private parties to sue police departments and assessing those suits on an ongoing basis would take little effort for the Justice Department. This seems unlikely. The Justice Department would need to engage in significant investigation before it permitted a suit to determine whether liability was likely, whether existing reform efforts were adequate, and whether the complaint would undermine incentives for proactive reform. The Justice Department would need to spend even more resources monitoring suits on an ongoing basis to determine whether they continued to serve the public interest. As a result, Gilles's proposal would permit private actors to commandeer precious Justice Department § 14141 resources.
194. Gilles's proposal would not have this effect, since under her proposal the Justice Department could quash any suits against safe harbored departments before they arose. See Gilles, supra note 9, at 1418.
195. Nor would the supervision of the federal courts likely provide an effective check on this collusion.
196. Advocates of private plaintiffs may also contend that private actors would add information as well as resources to police department reform. See Gilles, supra note 9, at 1388 (stating that private actors "have the information, means, and incentives required to challenge" police misconduct); Polinsky & Shavell, supra note 78, at 46 (contending that private enforcement makes sense when private actors have exclusive information about the identity of law breakers). It is notable, however, that potential private plaintiffs are unlikely to have much exclusive information about patterns of conduct in a police department, because patterns of misconduct may be more difficult for private actors to identify, and to the degree they do identify such patterns, that information can be conveyed easily to the Justice Department.
197. See supra notes 84-89 and accompanying text.
198. See Polinsky & Shavell, supra note 78, at 72 (noting that sanctions can be made more efficient by raising fines because raising fines increases deterrence more cheaply than raising enforcement expenditures).
199. See Levinson, Making Governments Pay, supra note 21, at 386-87.
200. See, e.g., 16 C.F.R. pt. 1303 (2009) (banning of lead paint by the Consumer Product Safety Commission); 28 C.F.R. pt. 36 (2007) (implementing Title III of the Americans with Disabilities Act).
201. See, e.g., National Minimum Drinking Age Act, 23 U.S.C. § 158 (2006); Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. § 16925 (2006); Emergency Highway Energy Conservation Act, Pub. L. No. 93-239, § 2, 87 Stat. 1046, 1046 (1974).
202. See, e.g., No Child Left Behind Act of 2001, 20 U.S.C. § 6311 (2004); Justice for All Act of 2004, 42 U.S.C. § 3797k (2006) (expanding Paul Coverdell Forensic Sciences Grant Program); Low-Income Home Energy Assistance Act of 1981, 42 U.S.C. § 8621-8630 (2006); U.S. Dep't of Justice, Nat'l Inst. of Justice, Coverdell Forensic Science Improvement Grants Program, http://www.ojp.usdoj.gov/nij/topics/forensics/nfsia/ (last visited Oct. 14, 2009).
203. See, e.g., CMTY. CAPACITY DEV. OFFICE, U.S. DEP'T OF JUSTICE, CCDO FY 10 WEED AND SEED COMMUNITIES COMPETITIVE PROGRAM GUIDE AND APPLICATION KIT 10 (2009), available at http://www.ojp.usdoj.gov/ccdo/funding/CCDO_FY2010_WSC_Competitive_Solici tation.pdf (requiring that federal "Weed and Seed" funding to local law enforcement agencies for attacking and preventing violent crime be used in concert with local resources redeployed for the same purposes); SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING OFFICE, U.S. DEP'T OF JUSTICE, SMART OFFICE FISCAL YEAR 2008 SUPPORT FOR ADAM WALSH ACT IMPLEMENTATION GRANT PROGRAM COMPETITIVE GRANT ANNOUNCEMENT 6-7 (2008), available at http://www.ojp.usdoj.gov/smart/funding/fy08awa_implementation.pdf (describing grant for improving sex offender registry that requires 25% match from non-federal funds).
204. This problem might be mitigated by making grants available only to departments with substantial indicia of misconduct, but such an effort may create perverse incentives for departments. Grants also have two further problems. First, there is a question of timing. The grants themselves cover a limited period of time. If the reform requirement is similarly temporary, it is unlikely to have much lasting effect. Some grants solve this problem by requiring that activities continue beyond the life of the funding. Such a requirement, however, discourages the participation of problematic departments. Second, just like other kinds of regulation, grants that condition money on particular activities require monitoring and enforcement to be effective. In the past, the Justice Department has not always enforced the conditions of grant programs effectively. See, e.g., THE INNOCENCE PROJECT, INVESTIGATING FORENSIC PROBLEMS IN THE UNITED STATES: HOW THE FEDERAL GOVERNMENT CAN STRENGTHEN OVERSIGHT THROUGH THE COVERDELL GRANT PROGRAM (2009), available at http://www.innocenceproject.org/docs/CoverdellReport.pdf (describing the Justice Department's failure to enforce the conditions of the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to reform state and local crime labs).