Federal enforcement of police reform

Fordham Law Review

Volumn 82, Issue 6, 2014, Pages 3189-3248

  Rushin, Stephen ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 84903554751     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (85)

1. See generally Mapp v. Ohio, 367 U.S. 643 (1961) (mandating the exclusion of evidence obtained in violation of the Fourth Amendment by a state law enforcement officer).
2. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 464-65 (2003) (describing methods to hold law enforcement officers criminally liable for constitutional violations);
3. Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 Buff. Crim. L. Rev. 817, 844 (1999) ("[C]riminal prosecution plays some role in holding officers accountable for acts of clear illegality.").
4. Although discussed in more detail later in the Article, I will mention two noteworthy examples here. Over the years, the courts have gradually chipped away at the exclusionary rule. See Carol S. Steiker, Counter-revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MlCH. L. rev. 2466, 2504-27 (1996) (explaining in detail the U.S. Supreme Court's gradual recognition of various exceptions to the exclusionary rule). Prosecutors have shown hesitance in prosecuting police officers.
5. See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 stan. L. REV. 1, 9 (2009) ("As a result, prosecutions against police officers are too rare to deter misconduct.");
6. Perhaps the most prominent instance of police brutality that spurred congressional action was the beating of Rodney King. Soon after the King beating, the House Subcommittee on Civil and Constitutional Rights held hearings on police brutality - specifically on the root causes of the King incident. The individuals who testified at this hearing made various recommendations on how structural police reform may be an effective way to deter systemic misconduct. See generally Police Brutality: Hearing Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 102d Cong. (1991) [hereinafter Police Brutality Hearing].
7. Samuel Walker & Morgan Macdonald, An Alternative Remedy for Police Misconduct: A Model State "Pattern or Practice " Statute, 19 Geo. Mason U. CR. L. J. 479, 479 (2009) ("[T]he purpose of such suits has been to effect organizational reforms designed to establish standards of accountability that will prevent such abuses from occurring in the future.").
8. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505,538-39 n. 134 (2001).
9. Brandon Garrett, Remedying Racial Profiling, 33 colum. Hum. Rts. L. Rev. 41, 100-01 (2001) (stating that "the DOJ lacks the resources" to address problems like racial profiling as demonstrated by the "[flew consent decrees" that have resulted from § 14141);
10. Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 colum. L. Rev. 1384, 1407-11 (2000) (arguing that the small number of cases pushed forward by the DOJ via § 14141 are potentially the result of resource and political constraints);
11. John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1419 (2007) (arguing "that the Department of Justice faces financial and political constraints on its effectiveness" in implementing § 14141);
12. Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489,493 (2008) ("Citing the expediency and cost-effectiveness of their settlement strategy, U.S. government officials have expressly articulated a preference for avoiding litigation and negotiating with municipalities to ensure compliance with the suggested reforms.").
13. Joshua M. Chanin, Negotiated Justice? The Legal, Administrative, and Policy Implications of "Pattern or Practice" Police Misconduct Reform 335 (July 6, 2011) (unpublished Ph.D dissertation, American University), available at https://www.ncjrs.gov/pdffilesl/nij/grants/237957.pdf.
14. Brian A. Reaves, U.S. Dep't of Justice, Census of State and Local Law Enforcement Agencies, 2008, at 2 (2011), available at http://www.bjs.gov/ content/pub/pdf/csllea08.pdf (putting the number of state and local law enforcement agencies at 17,985).
15. Eric Lichtblau, U.S. Low Profile in Big-City Police Probes Is Under Fire, L.A. Times, Mar. 17, 2000, at Al (quoting Gary Durfour, former City Manager of Steubenville, Ohio, who wondered why the DOJ chose to investigate Steubenville when other departments appeared to have more significant problems).
16. See, e.g., Richard A. Leo, Police Interrogation and American Justice 70 (2008)
17. ("[T]he Wickersham Commission Report revealed that police brutality in general and the third degree in particular were practiced extensively and systematically in police departments across the country."). For a full record of the Wickersham Commission Report sections involving local police misconduct, including the Report on Lawlessness, see Samuel Walker, Records of the Committee on Official Lawlessness, in Records of the Wickersham Commission on Law Observance and Enforcement, at v (1997), available at http://www.lexisnexis.com/documents/academic/upa-cis/1965-WickershamCommPtl.pdf. In 1929, President Herbert Hoover appointed the National Commission on Law Observance and Enforcement.
18. See Powell v. Alabama, 287 U.S. 45 (1932). Walter Pollak, one of the consultants who authored the Report on Lawlessness, argued the case before the Court.
19. Robert L. Birmingham, Breach of Contract, Damage Measures, and Economic Efficiency, 24 Rutgers L. Rev. 273, 284 (1970) (defining and explaining the concept of efficient breach in the context of contract law).
20. See Joseph Goldstein, Judge Rejects New York's Stop-and-Frisk Policy, N.Y. Times, Aug. 13, 2013, at Al (detailing Judge Shira Scheindlin's opinion finding that New York City acted unconstitutionally);
21. J. David Goodman, Mayor Calls Court Monitor for Police a "Terrible Idea," N.Y. Times, June 14,2013, at A22 (quoting Mayor Michael Bloomberg's objection to judicial intervention in the city's use of Terry stops as something that may increase crime);
22. Adam Serwer & Jaeah Lee, Charts: Are the NYPD's Stop-and-Frisks Violating the Constitution?, Mother Jones (Apr. 29, 2013, 03:00 AM), http://www.motherjones.com/politics/2013/04/new-york-nypd-stop-fnsk-lawsuit- trial-charts (illustrating the inequality of Terry stops in New York City).
23. See Franklin E. Zimring, The City That Became Safe 102 (2012) (describing the decentralization of American law enforcement into around 20,000 smaller state police agencies);
24. See, e.g., Nat'l Inst, of Justice, The Effects of the Exclusionary Rule: A Study in California (1982) (finding that the use of the exclusionary rule led to prosecutors dropping complaints in 86,033 felony arrest cases).
25. See generally William C. Heffeman & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. Mich. J.L. Reform 311 (1991);
26. Myron W. Orfield, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016 (1987).
27. Richard A. Leo, Inside the Interrogation Room, 86 J. Crim. L. & criminology 266, 302 (1995) (demonstrating how police have learned to negotiate the impact of Miranda, lessening the usefulness of warnings and increasing the likelihood of obtaining a confession);
28. Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. Law & Criminology 621, 621-92 (1996);
29. see also Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2d ed. 2008) (rejecting the role of courts in instigating social change in various contexts). Gerald Rosenberg famously compiled evidence from numerous empirical studies demonstrating that attempts by the Court to instigate social change often fail.
30. Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev 1521, 1523 (2008) (illustrating in impressive detail how police training material has taught law enforcement to mediate the impact of Miranda).
31. But since then, the Court has recognized a "collateral use exception" that seemingly "reconstitutes a version of what was once known as the 'silver platter doctrine.'" David Gray, Meagan Cooper & David McAloon, The Supreme Court's Contemporary Silver Platter Doctrine, 91 Tex. L. Rev. 7,10 (2012).
32. See Stephen Rushin, The Regulation of Private Police, 115 W. Va. L. Rev. 159, 183 (2013) (detailing the fact that the exclusionary rule only applies to public law enforcement);
33. Guido Calabresi, The Exclusionary Rule, 26 HaRV. J.L. & pub. pol'y 111, 111 (2003).
34. Hudson v. Michigan, 547 U.S. 586, 599 (2006) ("[W]e now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously.").
35. See generally Chris Blair, Hudson v. Michigan: The Supreme Court Knocks and Announces the Demise of the Exclusionary Rule, 42 Tulsa L. Rev. 751 (2007);
36. David Alan Sklansky, Not Your Father's Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209 (2006);
37. James J. Tomkovicz, Hudson v. Michigan and the Future of Fourth Amendment Exclusion, 93 Iowa L. Rev. 1819 (2008).
38. Candace McCoy, Enforcement Workshop: Lawsuits Against Police - What Impact Do They Really Have?, 20 Crim. L. Bull. 49,51-52 (1984).
39. Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State 93-114 (2009) (describing the process by which police departments have come to implement reform, due in part to the threat of possible litigation). Epp shows that in November 1977, when the largest private insurance company that provided police liability insurance withdrew from the market because of unacceptable risk, the prospect of self-insurance motivated many police professionals to develop rules and regulations about police conduct.
40. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. (forthcoming 2014).
41. Bonnie Mathews & Gloria Izumi, U.S. Comm'n on Civil Rights, Who Is Guarding the Guardians?: A Report on Police Practices (1981), available at http://catalog.hathitrust.org/Record/007105152.
42. For another example of how criminal prosecution has been a limited tool for combating police misconduct, see John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev. 789,806-11 (discussing the limitations of federal criminal prosecution as a tool to fight misconduct).
43. Some have argued that the move towards accreditation and uniformity to national standards has made departments more receptive to shifting norms in policies and procedures. See Terry Gingerich & Gregory Russell, Accreditation and Community Policing: Are They Neutral, Hostile, or Synergistic? An Empirical Test Among Street Cops and Management Cops, 2 Just. Pol'y J. 3,7 (1996).
44. Comm'n on Accreditation for Law Enforcement Agencies, Annual Report for 2010, at 3 (2011), available at http://www.calea.org/content/calea-2010-annual- report. But accreditation is still voluntary and expensive. Thus, it should come as no surprise that the 985 agencies claiming CALEA accreditation in 2010 represent only 5.6 percent of all law enforcement agencies in the country.
45. For a detailed account of the Rodney King events, see Seth Mydans, Videotaped Beating by Officers Puts Full Glare on Brutality Issue, N.Y. Times, Mar. 18,1991, at Al.
46. see also Federal Response to Police Misconduct: Hearing Before the H. Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 103rd Cong. 2 (1992) [hereinafter Federal Response to Police Misconduct] (statement of Rep. William Edwards, Member, H. Comm. on the Judiciary) (noting that a structural police reform measure was incorporated into the Omnibus Crime Bill of 1991).
47. Tape of Police Beating Causes Major Furor, seattle times, Mar. 6, 1991, at A2 ("The video, shot by amateur photographer George Holliday, shows no indication that King tried to hit or charge the officers.").
48. Indep. Comm'n on the L.A. Police Dep't, Report of the Independent Commission on the Los Angeles Police Department 3 (1991).
49. An 'Aberration' or Police Business As Usual?, N.Y. Times, Mar. 10,1994, at E7 ("More than 1,000 callers from around the country phoned Mr. Gates's office expressing their outrage and demanding that he resign.").
50. David Parrish, Activists: L.A. Police 'Street Justice'Brutal, Spokesman-Rev., Mar. 10, 1991, at A3 (quoting Chief Gates as saying that the event was an aberration, and that "[i]t's not the kind of conduct that we have normally from our officers").
51. Terence Moran & Daniel Klaidman, Police Brutality Poses Quandary for Justice Dept., Legal Times, May 4,1992, at 24.
52. Joan Biskupic, Crime Measure Is a Casualty of Partisan Skirmishing, 49 CQ Weekly 3528,3530 (1991).
53. For an excellent summary of these components and a detailed historical account of the VCCLEA's passage, see Lord Windlesham, Politics, Punishment, and Populism (1998). In total, the Act cost taxpayers an estimated $30 billion.
54. Shahid M. Shahtoullah, Crime Policy in America: Laws, Institutions, and Programs 17 (2008). The VCCLEA also mandated strict truth-in-sentencing requirements, implemented life sentences for repeat violent offenders, banned nineteen types of assault weapons, banned juvenile ownership of handguns, added additional penalties for hate crimes, and extended the death penalty.
55. " Erica R. Meiners, Right To Be Hostile: Schools, Prisons, and the Making of Public Enemies 103 (2007).
56. William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 781, 798 (2006) (calling structural police reform "the most important legal initiative of the past twenty years in the sphere of police regulation").
57. Robert C. Davis, Nicole J. Henderson & Christopher W. Ortiz, Can Federal Intervention Bring Lasting Improvement in Local Policing? The Pittsburgh Consent Decree (2005), available at http://www.calea.org/content/calea-2010- annual-report.
58. See Christopher Stone, Todd Foglesong & Christine M. Cole, Policing Los Angeles Under a Consent Decree: The Dynamics of Change at the LAPD (2009), available at http://www.lapdonline.org/assets/pdf/Harvard-LAPD%20Study.pdf.
59. Stephen Rushin, Structural Police Reform, 99 Minn. L. Rev. (forthcoming 2015) (on file with author) (manuscript at 56-57) (showing that during the structural police reform era, violent crimes in Los Angeles fell by 65 percent and property crime rates by 36 percent - both figures far exceeding the median large American city). And the traffic and pedestrian stops today lead to arrests more often than in years past.
60. Conduct of Law Enforcement Agencies, U.S. Dep't Just., http://www.justice.gov/crt/about/spl/police.php (last visited April 26, 2014) (stating that the DOJ uses "information from a variety of sources" to select cases for § 14141 litigation).
61. Nicole Marshall, Why Investigate Us? Police Ask, Tulsa World, Apr. 1, 2001, at Al.
62. Shawn Hubler, In Rampart, Reaping What We Sowed, L.A. Times, Feb. 17, 2000, at Bl (explaining "the sickening revelations" surrounding the Rampart scandal including "the frame-ups, the dope dealing, the tales of brutality verging on murder"). Other allegations include claims that officers arranged the deportation of witnesses to police abuse.
63. Anne-Marie O'Connor, Activist Says Officer Sought His Deportation, L.A. Times, Feb. 17, 2000, at Al. The evidence of the Rampart scandal first started to emerge when Rafael Perez, former Rampart Division Officer, was arrested for cocaine theft charges.
64. See Kathryn M. Downing et al., Editorial, A Scandal Hits Home, L.A. Times, Apr. 11,2000, at B8.
65. David Rosenzweig, 3 Sue LAPD over Rampart Scandal, L.A. times, Aug. 7, 2005, at B3 ("More than 100 criminal cases were overturned after former Rampart Officer Rafael Perez contended that he and other officers had routinely framed gang members for crimes they did not commit.").
66. see also Police Exec. Research Forum, Civil Rights Investigations of Local Police: Lessons Learned 3 (2013), available at http://samuelwalker.net/wp- content/uploads/2013/07/PERFConsent-Decree.pdf (stating that "[i]n Cincinnati, riots were sparked in 2001 by the police killing of Timothy Thomas, a 19-year-old African American with 14 open warrants for minor, mostly traffic-related violations," and identifying this as a major cause of the eventual DOJ investigation of the Cincinnati Police Department).
67. John Lamberth, Driving While Black: A Statistician Proves That Prejudice Still Rules the Road, Wash. Post, Aug. 16,1998, at CI.
68. Oversight of the Department of Justice - Civil Rights Division: Hearing Before the Comm. on the Judiciary, 107th Cong. 18-20 (2002) [hereinafter Oversight of the DOJ] (testimony of Ralph Boyd, Jr., Assistant Att'y Gen., Civil Rights Div., U.S. Dep't of Justice).
69. Jodi Nirode, Doug Caruso & Bob Ruth, City, DOJ Draft Pact; The Police Union Will Be Asked To OK Contract Changes To Avoid Suit Over, columbus dispatch, Aug. 17, 1999, at Al (stating that in a request for the 2000 budget, the DOJ requested $100 million per year to fund sixteen new investigators annually, putting the estimated cost at around $6 million to $7 million per investigator hired).
70. Jamie Stockwell, Rights Investigation of Police Continues, Wash. Post, Dec. 22, 2002, at C6.
71. David Hench, City Police To Get Federal Review, Portland Press Herald, May 8, 2002, at 1A.
72. (quoting Int'l Ass'n of Chiefs of Police, Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement 38 (2006), available at http://www.cops.usdoj.gov/files/ric/Publications/e06064100.pdf).
73. William R. Yeomans, Department of Justice Investigation of Use of Force by the Washington Metropolitan Police Department 2 (2001), available at http://www.clearinghouse.net/cnDocs/public/PN-DC-0001-0002.pdf.
74. See Eric Lichtblau, Bush Sees U.S. As Meddling in Local Police Affairs, L.A. Times, June 1,2000, at A5.
75. Several studies have found that this sort of political spillover can affect agency aggressiveness. Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 110 & n.48 (describing studies that show the link between politics and "agency slack").
76. See generally Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974). Galanter distinguishes between "repeat players" (those who are engaged in multiple similar litigations over time) and "one shotters" (those who litigate only on rare occasions).
77. Abram Chayes, The Supreme Court, 1981 Term, 96 Harv. L. Rev. 1,4 (1982).
78. Owen M. Fiss, The Supreme Court, 1978 Term, 93 Harv. L. Rev. 1,2 (1979).
79. Marshall Miller, Police Brutality, 17 Yale L. & Pol'y Rev. 149, 176 (1998) (hypothesizing on the future use of § 14141).
80. Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. Cal. L. Rev. 1453, 1524 n.279 (1993).
81. see also John Kip Cornwell, CRIPA: The Failure of Federal Intervention for Mentally Retarded People, 97 Yale L.J. 845 (1988) (finding that the Reagan Administration's DOJ avoided litigation under CRIPA and authored inadequate settlements).
82. See, e.g., Roger L. Faith et al., Antitrust Pork Barrel, 25 J.L. & econ. 329 (1982) (arguing that the composition of a congressional oversight committee influenced the composition of an FTC antitrust law);
83. Barton H. Thompson, Jr., The Continuing Innovation of Citizen Enforcement, 2000 U. III. L. Rev. 185,191 (showing how political considerations have lead agencies to reduce prosecution of environmental law violations).
84. Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97 Am. J. SOC. 1531,1531 (1992).
85. See, e.g., Sam Wood, The Federal Agent Scrutinizing the Philadelphia P.D., Philly.com (Dec. 30, 2013, 4:34 PM), http://www.pWlly.com/pmlly/news/ brealdng/The-fed-scmtinizmg-me-Philadelpliia-PD.html (discussing how Philadelphia, Las Vegas, and other cities are part of a collaborative police reform model with the DOJ that will potentially avoid the use of § 14141 and external monitoring).