Fixing American Policing
Adam J. McKee
CHAPTER 7: Protection
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
Because the American system of laws grants police the legitimate use of force, the protection of life falls squarely within the scope of police duties. With this power comes great responsibility and the need for a correspondingly high degree of personal and professional accountability.
The motto of many police departments nationwide has long been “To Protect and Serve.” The idea of “protection” is obviously multifaceted. As the title of this book suggests, I see major structural problems within American policing, and I do advocate radical change. I, however, do not go so far as some suggest and advocate the abolition of policing. I have several reasons that I believe justify the existence of police departments, not the least of which is the idea that there are evil people in the world. So long as there are violent criminals among us, some entity must be willing and able to counter that violence. That does not suggest that this violence should resonate within the police culture, but it must be acknowledged that violence is a part of police work, and that is by necessity. To effect real, positive change in American policing, we must counter the more violent, confrontational aspects of police culture when it causes negative impacts on society. That is a primary reason that redefining the police culture is so difficult; we cannot allow it to remain a culture dominated by violence, but neither can we remove violence from it entirely.
In fact, very few people actually do advocate the abolition of policing. Some advocate for defunding the police, which in normal political discourse that is a polite way of saying abolish. Logically, if you defund something (give them no money), then they cease to exist. But when you read the calls for “defunding” the police, most often you see calls for police reform (albeit radical reform), whereby police are given less funding, and the surplus money gained is used for community development of some sort. Some of the calls have been so radical as disband the entire department and replace it with something new; that new entity will be, at its core, a policing agency. Ultimately, we need to be very careful about such moves. When we disband something in haste and replace it in haste, we are likely to find that we have created new things with the characteristics of the old thing we didn’t want.
For some departments, the powers of corruption, racism, and unions may be so ingrained that starting from scratch may be the only viable option. I am quick to point out that corruption must be rooted out, racism must be rooted out, and the power of police unions over the community must be abolished. In the power vacuum left behind, a new community policing should be installed. There are likely several viable ways to accomplish that objective. Ultimately, I believe that we will find very few communities that have the political will to disband their police departments. Those that do will need to have a clear, well-defined plan in place to replace the old guard. If they do not do so, then the old guard will rise again, albeit by a different name and in different uniforms, and the same problems will emerge.
Officers must be given sufficient education and training to accurately assess when deadly force is appropriate and when it is not. The other pillars we suggest collectively circumscribe the use of deadly force as well as the use of less than lethal force. That is, when an officer must resort to force, then all other efforts, for example, communication and de-escalation, have failed. The use of force by police often suggests a failure to consider a much broader spectrum of conflict resolution options than officers have employed in a given circumstance. All levels of government and all people must make a concerted effort to reduce violence by rejecting the culture of violence in our society. Of course, the mandate to protect the life and welfare of citizens also extends to their property. Thefts and burglaries are among the most common crimes in America today (Federal Bureau of Investigation, 2015, p. 2).
Both individual officers, as well as entire police departments, should be held to account for their actions. Effective accountability procedures are essential if the police are to achieve the critical goals of lawfulness and legitimacy. Lawfulness refers to compliance with the formal requirements of the law (e.g.., legal codes, and court decisions). Legitimacy refers to the perception that police conduct is both lawful and consistent with public expectations. These elements are important in their own right, but both are essential even within the context of traditional policing. If the police are to achieve their goals of reducing crime and disorder, they must be seen by all members of the public as both limited in their actions by law and backed by a legitimate right to use their authority. As Samuel Walker observed, “lack of legitimacy inhibits the development of working partnerships that are an essential ingredient in community policing and problem-oriented policing.”
Individual-level accountability involves the behavior of officers with respect to lawful, respectful, and equal treatment of all people. Individual-level accountability procedures can be divided into two general classifications: internal and external. Procedures that are internal to police departments include regulating officer conduct through formal policies, regular supervision, systematic performance evaluations, and the investigation of misconduct allegations. External accountability procedures include citizen oversight agencies and, in serious cases, formal investigations by outside agencies. They can also include civil litigation in both state and federal courts (e.g., Section 1983 suits).
Early intervention systems (EIS) constitute an important modern police management tool designed to strengthen accountability. An EIS involves a database on officer performance that enables analysis for the purpose of flagging officers who appear to have recurring behavioral problems (e.g., high rates of use of force, citizen complaints, etc.). Officers who are identified are most often subjected to formal interventions (typically counseling or retraining) designed to fix the problems. An EIS is now required by the Commission on the Accreditation of Law Enforcement Agencies. Sadly, very few agencies seek or are awarded such accreditation.
Oversight of Police Behavior
During the past several decades, highly publicized officer-involved encounters have led to the proliferation of organizational mechanisms for reviewing and improving officer conduct. One such mechanism is the development of civilian oversight of law enforcement. Sometimes referred to as citizen oversight, civilian review, external review, and citizen review boards, the basic purpose of these citizen review teams is to address community complaints about officer misconduct. When it works well, it can help hold police accountable and develop trust with local residents.
“Working well” can sometimes be elusive. Civilian boards with authority to investigate police misconduct can be strong, but they can also be expensive because they require large budgets for investigators. Survey research on civilian review boards has found investigative boards vulnerable to inadequate funding, staffing, and slow investigations. Some boards are structurally weak and are not really designed to accomplish their objective. For example, some are unable to subpoena officers, and others lack the authority to carry out their own investigations. Often these weak boards review the findings of a department’s internal affairs office. Often, they’re rendered impotent by an absence of a political will.
The National Association for Civilian Oversight of Law Enforcement has developed several archetypes of review systems. Investigation-focused Models area form of oversight that operates separately from the local police or sheriff’s department. While the structure, resources, and authority of these types of agencies can vary among jurisdictions, these agencies are tied together by their ability to conduct independent investigations of allegations of misconduct against police officers. Review-focused Models are a type of oversight that focuses its work on reviewing the quality of completed internal affairs investigations.
Many review agencies take the form of volunteer review boards or commissions and are designed around the goal of providing community input into the internal investigations process. Instead of conducting independent investigations, review agencies may evaluate completed internal affairs investigations, hear appeals, hold public forums, make recommendations for further investigation, and conduct community outreach. Auditor/monitor-focused Agencies are one of the newest forms of police oversight. While there can be variation in the organization structure of this type of civilian oversight, auditor/monitor agencies tend to focus on promoting large-scale, systemic reform of police organizations while often also monitoring or reviewing individual critical incident or complaint investigations.
This latter monitor focused style seems to be the best fit for most large agencies for several reasons. First, allegations of police misconduct that violate civil rights or criminal laws should be investigated by outside investigative agencies, not civilians. The specter of prosecution should be very real when officers break the law. I would like to see the Attorney General’s Office of every state form a special, well-funded bureau charged with investigating alleged criminal activity by police officers. If departments are measuring what matters in this information age, then reams of data about officer activity can be easily compiled, and monitoring can largely become a data analysis function. This could, in turn, lower overall costs of civilian review by reducing human resources and make such programs more viable.
The Union Problem
As the entity within American society that has a legal monopoly on the use of force domestically, the police obviously require a higher level of accountability than any other profession. Some professions do a pretty good job of policing themselves through professional associations and licensing boards (e.g., medical doctors, dentists, etc.). Criminal justice scholars have long held that the police (while there are variations from department to department) have a unique culture that doesn’t always align with that of the greater society.
As Shawn Vestal (2020) observed,
“When the current ombudsman system was created, the city failed to achieve what voters wanted – truly independent investigations of police misconduct, which 70% of us voted for in 2013. The Police Guild resisted true oversight, and in the face of its determined resistance, the Condon administration and City Council settled for a half-measure and constrained the ombudsman’s authority right out of the gate.”
The path to a new community policing in America begins with severely curtailing the power of police unions by whatever name they are called. They may exist as guilds, fraternal orders, unions, or by myriad other names, but the functioning of police empowerment organizations must be curtailed. These organizations wield massive political power and cannot have that power effectively stripped away at the local level. The real solution will require federal legislation that prescribes the scope of what these organizations can do. The ability to bargain collectively for salary and benefits seems reasonable. Directly empowering rogue officers to dodge accountability is a bridge too far. This sort of power must be curtailed.
Administrative rulemaking—writing departmental policies—in policing is most particularly developed in the arena of police use of deadly force. Departmental policies on this subject are generally the most detailed of any area of police behavior. Despite some local variations, a general national consensus currently exists on the best policy. Specifically, the use of deadly force should be limited to the defense of the life of the officer or other citizens. At the same time, the literature on the effectiveness of deadly force policies is arguably larger than any other area of police conduct. When it comes to deadly force, we know what to do, we have trouble clarifying the policy and forcing officers to stick to it. A missing puzzle piece is a clear-cut guide to what is deadly and what is “less than lethal.” We need evidence-based criteria for classifying force options and clear guidance on what force is deadly. It is a tragic consequence of our decentralized policing system that not everyone knows that “chokeholds” are too dangerous to be used in situations where deadly force is not already authorized by law.
Less Lethal Force
Less lethal force by police involves officer actions that utilize either an officer’s body (e.g., hands, feet) or a less-lethal weapon (baton, pepper spray, electromagnetic device, etc.). The term “less lethal” has recently replaced “less than lethal” in recognition of the fact that weapons other than firearms are, in fact, potentially lethal. Virtually all police departments have written policies governing the use of force, although policies vary considerably across departments with respect to many important details. Use of force policies typically specify the legitimate purposes for which force may be used, the types of force that are authorized and not authorized, and also the specific circumstances in which force is authorized or forbidden. Policies increasingly include the “use of force continuum” that relates the permissible use of force to the citizen’s behavior.
Most all of the scientific research on police use of less-lethal force investigates trends in the use of force, particularly the situational factors related to its use. Also of wide concern were the demographics of citizens against whom force is used. Unfortunately, there are no rigorous, large-scale studies that directly investigate whether inhibitory policies on the use of force shrink either the total rates of force use or incidences of excessive force by police. Nevertheless, the evidence on the effectiveness of restrictive policies on the use of deadly force suggests possible effectiveness with regard to less-lethal force. It is worthy of note that the two types of force are different in important aspects, and caution is warranted absent further scientific evidence. Less lethal force occurrences are far more abundant (and obscure) than are deadly force incidents. This underscores the need for much better mandatory data gathering by police departments (a constant theme throughout this book), and a need to bolster the synthesis of that data into useful information.
Several critical procedural problems confront any attempt to measure the impact of restrictive policies on the use of force. First, use of force policies vary considerably from department to department. This is so for several facets of the issue. What kinds of force are referenced and authorized, which kinds of force are required to be reported, and the process for reviewing force reports are all variant across departments. Second, policies within specific departments are endlessly being revised, making backward-looking studies problematic. In addition, force policies vary in terms of the use made of the resulting reports. This results in national-level data that is too basic to be very meaningful from a policy perspective.
We know if the weapon was fired, whether a citizen was struck by a bullet, and if the shooting was fatal or not. The important information as to whether the force was justifiable or not is conspicuously absent across the board. These factors suggest that we need national standards on the reporting of the use of force by police. The FBI’s National Incident-Based Reporting System (NIBRS) for crime statistics serve as a blueprint for how such a system could be implemented. Given the importance of crime data and police use of force data, the system needs to move from one of voluntary participation by police departments to one mandated by federal policy.
Strangely, the use of police dogs as a proxy for an officer using force against a citizen managed to slip through the cracks of the use of force issues for many years. Recently, more and more commentators have insisted that when a dog is used to capture and control a person, force has been used. The uncontrolled use of canine units has led the Department of Justice to include the issue in many of its consent decrees (e.g., Cincinnati PD). We cannot ignore the fact that bites by police dogs inflict pain and cause injury. This type of force, albeit by proxy, is an extension of a particular officer’s decision to use force, and officers need to have that decision weighed against the reasonableness of the decision, just as with any other decision to use force. There is scant evidence as to the impact of restrictive policies on the injury of citizens by police dogs, but the anecdotal evidence suggests that such policies reduce the number of bites and, thus, the number of injuries.
While we’ve only scratched the surface of this critical topic, a recurring theme of this chapter is that we don’t understand on a national level what police are doing on the streets, at least in a meaningful way that can support sound policy decisions. Calls for evidence-based policy mandates cannot be answered because we lack the necessary evidence from which to craft solutions. This is true for issues concerning protecting Americans from crime and disorder, the fear of crime, and harmful misconduct by police officers. All these facets suggest that an important aspect of real police reform will be standardizing what data are collected, how those data are compiled, and how the data are analyzed.
As I have argued elsewhere in this book, localized policing is a historical mistake, but that bad way of doing things isn’t likely to change because those accidents of history are enshrined in our legal system and in our state constitutions. It would take decades of concerted effort to turn policing over to state governments (or the federal government), even if we had the political will to do so. Still, the federal and state governments have roles to play in police reform; indeed, police reform will not happen if it is not forced on municipal governments by higher-level governments.
As most criminal justice scholars (and even undergraduate students) know, we have the infrastructure to develop good policy in place, and we have a very capable justice data analysis infrastructure in place. These are spread out across an alphabet soup of federal agencies, but they exist. I would suggest consolidating those capabilities, but that isn’t absolutely critical. We don’t have reliable data because the federal government hasn’t yet mandated that police follow evidence-based best practices (with necessary allowances for innovative practices that may work) or that they participate in data collection programs. The biggest single reason for this lack of mandates is the fact that the Constitution has been interpreted such that criminal justice is mostly a state matter. In other words, the Constitution doesn’t give the federal government authority to mandate criminal justice policy at the state level, which is where most criminal justice decisions take place. State legislatures make the criminal laws for each state, and state court systems set the law of police procedure (along with the Supreme Court of the United States if there is a Due Process issue involved).
However, Congress has the power of the purse, which is an incredibly powerful tool. To see just how powerful federal money is in getting states to do what Congress wants them to do in the criminal justice arena, one needs to look no further than the history of the legal “drinking age” in the United States. States were told to raise the legal drinking age to 21, and those that didn’t comply had their highway funding cut. Every single state eventually capitulated. Louisiana held out longer than anyone, but this independence and tenacity caused damage to their highways that is still evident today.
What I suggest is that the National Institute of Justice (or some other cognizant agency) be assigned the task of developing a set of national police standards and policies and that Congress use the power of the purse to make every local agency comply with those standards. In other words, states don’t have to make local police departments and sheriff’s departments comply, but they forgo massive amounts of federal dollars when they refuse. Of course, such policies would need to be tiered based on the agency’s size and other local limitations, but the important data-gathering functions could be facilitated in this way.
Standardized policies would actually make the lives of small, local departments easier by having policies in place that shield them from civil liability. Federal monies could also be used to fund “compliance grants” that would assist agencies in coming into compliance with the national standards. I suggest that these be automated and based on the size of the jurisdiction and that the current system (most commonly used) of using competitive grant applications be abandoned. The simple truth is that many police departments belong to municipal governments that cannot possibly field a professional agency; the only way to fix the problem in the short term is to have the states or the federal government provide funds that change the equation.
When I suggest a nationally created policing policy, I do not mean bulleted lists filled with platitudes. I mean a full array of specific policies that provide minimum standards that can be augmented by local governments, but not undermined. These policies need to be comprehensive and essentially replace departmental policies throughout the United States. Such a system would have many advantages. A major advantage would be that when new best practices are developed, they can be pushed out broadly and quickly to all corners of the Nation. With many aspects of policing, we have known that the old way of doing things was a bad way of doing them for decades, but the changes haven’t percolated down to nearly all of America’s 18,000 police agencies. National policies would also make a national police education system viable, where a small cadre of highly skilled instructional designers could create training materials that would be available to every officer in the United States for free (the University of Arkansas System’s Criminal Justice Institute has shown the excellence of this approach on a state level over a long history). I am so bold as to speculate that for the vast majority of police departments in the United States, “in house” training is truly terrible.
A critical component of national policies would by necessity be data collection. As I have previously argued, we really don’t know what our police officers are doing out there. We need good crime data to determine national trends, and despite the herculean efforts of the FBI, we still don’t have it. We need to know who officers are making contact with on the streets, and why they are doing it, and what the outcomes of those encounters are. We need to know when force is used, how much force is used, why it was used, and who it is used against. We need to know how much time officers spend building community relationships and solving community problems. We need to standardize what matters, and we need to know those measurements. We need to know a lot of things, and forced data collection is the only way that we’ll ever know. Those data can be compiled and analyzed, and patterns of misbehavior can be identified and investigated. What matters can be measured, and the correct behaviors can be rewarded. This big data strategy sounds like a massive burden to place on officers, but in today’s world, it really isn’t.
The key is to modernize the data collection process and automate as much of it as possible and to constantly review and renew that technology to constantly improve the quality of information and the ease of gathering it, the ease of compiling it, and the ease of analyzing it. In today’s world, there seems to be an app for everything. Why not a police app that tracks citizen contacts? Why not incorporate a code scanner that records demographic information from every identification card that officers ask to see?
We ask that of convenience store clerks to sell beer and cigarettes, so it isn’t farfetched to ask cops to collect readily available data. This massive data stream that I suggest can easily be fed into a national database using cloud technology. We don’t need a statistician and a computer scientist in every police department in America. A small army of analysts centrally located within the Bureau of Justice Statistics would do nicely. Obviously, security and privacy policies will be key, and that too is best done at a centralized level where the very best minds can be put to work on the critical issues.
Another aspect of centralized policy could and should be a centralized database of officer training and certification. This would allow good officers to transfer to any department in the country relatively easily, and would also provide a centralized way to monitor decertified officers so that the bad apples can’t simply move across the state line and find a new police job when they get fired for misconduct.
Officers must be given sufficient education and training to accurately assess when deadly force is appropriate and when it is not. The other pillars we suggest collectively circumscribe the use of deadly force as well as the use of less-than-lethal force. That is, when an officer must resort to force, then all other efforts, for example, communication and de-escalation, have failed. The use of force by police often suggests a failure to consider a much broader spectrum of conflict resolution options than officers have employed in a given circumstance. All levels of government and all people must make a concerted effort to reduce violence by rejecting the culture of violence in our society. Of course, the mandate to protect the life and welfare of citizens also extends to their property. Thefts and burglaries are among the most common crimes in America today (Federal Bureau of Investigation, 2015, p. 2).