April 2021
Police departments and other law enforcement agencies are insular institutions, and while internal investigations of misconduct and uses of force are necessary, they are not fully sufficient to hold departments and their officers accountable for transgressions. More often than not, external means of accountability also come up short, with too many cases of excessive force and other misconduct leaving the victim uncompensated and the wrongdoer unpunished. Independent governmental review of agencies’ policies and practices, as well as patterns of misconduct, are intended to fill these gaps, enhancing the accountability of officers who use excessive force or engage in other forms of misconduct and deterring others from doing so.
Summary Assessment
- The narrowness of the current standard for a federal criminal civil rights violation in policing unnecessarily hinders prosecutions for even the most egregious police uses of excessive force. The criteria should be expanded to include “knowing” and “reckless” deprivations of rights.
- Reforms in individual police agencies resulting from the U.S. Department of Justice’s (DOJ) “pattern-or-practice” program have been effective in reducing uses of force, civil litigation costs, and improper stops, frisks, and searches. The DOJ should revive and dramatically expand this program and the Collaborative Reform Initiative within the Community Oriented Policing Services (COPS) office.
- Consent decree and collaborative reform processes should include opportunities for community engagement, such as community outreach plans and inclusion of community voices in the review of new policies.
- State attorneys general should have the authority to bring pattern-or-practice investigations. Relatedly, consideration should be paid to who is best suited to independently investigate and prosecute particular instances of police misconduct. In some cases, a state attorney general may be better suited than a local prosecutor’s office to manage such inquiries.
Current Practice and Research
With an average of more than 1,000 fatalities of community members at the hands of law enforcement each year, it is crucial that systems of investigation, indictment, and prosecution of police officers are transparent, equitable, and hold wrongdoers accountable. But judging from the minuscule number of indictments and convictions for fatal police shootings – figures that have barely changed over the past six years despite increased public awareness and a wave of reforms – current investigation and prosecution practices remain insufficient. Legal experts attribute the low rate of police officer indictments and convictions for excessive use of force to several factors. The culture of police agencies is typically protective of officers, compromising the independence and efficacy of internal investigations, and this dynamic is bolstered by strong union representation. In addition, prosecutors use different practices when bringing police misconduct cases to grand juries, providing much more exculpatory evidence in the case of police officer defendants than they do with defendants in other criminal cases. At the trial stage, the absence of a clear legal definition of what qualifies as excessive force makes it difficult for jurors to determine if the police have violated the law. Moreover, the criteria for police use of force that constitutes a federal civil rights violation is quite narrow. Finally, the threat of civil cases is a weak deterrent given the protections afforded officers and their agencies through qualified and sovereign immunity. There are several ways that outside governmental agencies and reform measures could address these challenges. These include passing statutory measures that clarify the definition of excessive use of force and civil rights violations; revitalizing the DOJ pattern-or- practice and Collaborative Reform programs; and developing and employing more robust independent state and local governmental oversight efforts through the use of inspectors general, police monitors, police auditors, and police integrity units.
Meeting the “willfully subjects” criterion and requiring “specific intent” is so difficult that no federal civil rights charges were brought against the New York City officer who killed Eric Garner, or the Cleveland officers who killed Tamir Rice, a 12-year-old child, that same year.
Legal Reforms
The legal justification for a police officer’s legitimate use of deadly force is established through case law, usually by criteria from Tennessee v. Garner (1985), which requires the officer’s perception of danger to his or her life or that of a bystander to be considered “reasonable.” These criteria are largely subjective, requiring judges, prosecutors, and jurors to get inside the head of the officer and affording ample latitude on the part of the defense to craft a narrative that meets a loose and malleable definition. In addition, cases are typically decided on the specific nature and extent of the force used in the instant. This neglects the context of preceding and following events that shape the encounter, though legal precedent permits the inclusion of such facts. The lack of precision in what justifies the use of force also has serious implications for the prevention of fatal use of force, especially if officers interpret it to mean that they are justified in using fatal force based on their perceptions of the threat level rather than on the material circumstances surrounding the encounter. One scholar has proposed the establishment of more objective, clear, and restrictive protocols on deadly force, such as prohibitions of the use of deadly force when the suspect is unarmed, is attempting to escape on foot, or is fleeing in a vehicle but has not fired shots and does not have a hostage. Naturally, these prohibitions would not apply to cases for which there is an immediate threat to life, per Tennessee v. Garner (1985). Another protocol that could be employed is a “shoot and stop” policy, requiring officers to re-evaluate the need for deadly force after firing the first shot.
A related definitional problem concerns the current criteria governing when police use of force constitutes a federal civil rights violation, which requires proof that the officer has willfully subjected the community member to bodily injury with specific intent to violate his or her rights. The existing law is narrowly drawn. Meeting the “willfully subjects” criterion and requiring “specific intent” is so difficult that no federal civil rights charges were brought against the New York City officer who killed Eric Garner, or the Cleveland officers who killed Tamir Rice, a 12-year-old child, that same year. The law should cover “knowing” and “reckless” deprivations of rights under the color of law and not just “willful” ones.
Federal Pattern-or-Practice Investigations and Collaborative Reform
Though it is better known for funding 100,000 police officers and enhancing criminal penalties, the 1994 Crime Bill also provided authority for the U.S. Attorney General to investigate law enforcement agencies for a pattern or practice of unconstitutional behavior, such as excessive force, unreasonable stops and searches, arrests without warrants or sufficient cause, and discriminatory policing. These investigations often result in a consent decree or a negotiated settlement. Consent decrees generally require reforms in use-of-force policies, reporting and investigations, stop-and-search procedures, revised training and supervision, improved public complaint investigations and officer discipline systems, prohibitions on racial profiling or other bias-based policing, and the use of early intervention systems. More recent consent decrees have begun to include provisions for community engagement, such as community outreach plans, civilian review boards, public monitor meetings, and, in some cases, a community voice in review of new policies. They have also incorporated aspects of community and problem-oriented policing strategies into their provisions. The decision to open an investigation often occurs after a high-profile use-of-force incident, civil unrest, media attention, and/or a request for investigation from jurisdiction officials or community and civil rights organizations. On average, an investigation takes 18 months, and concludes with the DOJ issuing a public “findings letter” or report and negotiating a resolution with the jurisdiction. Typically, that resolution is a consent decree overseen by a federal court with an independent monitor team to evaluate progress and compliance and report to the court. Since 1996, there have been more than 70 DOJ investigations of police agencies, resulting in more than 40 consent decrees and settlement agreements.
In 2011, during the Obama administration, the DOJ’s COPS Office developed the voluntary Collaborative Reform Initiative to provide police departments with a review of agency policies and practices and offer technical assistance with implementation efforts. Under this program, jurisdictions could request that the COPS Office fund and oversee an intense, time-limited assessment of a department’s policies and practices by national experts. The experts would produce a report with findings and recommendations for the department and write follow-up assessments describing progress. Between 2012 and 2017, 16 law enforcement agencies utilized the Collaborative Reform Initiative process, including departments in San Francisco, Spokane (WA), St. Louis County (MO), and Las Vegas. Under the Trump administration, the DOJ launched only one pattern-or-practice investigation and did not enter into any consent decrees. While the Collaborative Reform Initiative was continued at the COPS Office, it no longer involved a systemwide review of an agency’s policies and practices, instead providing technical assistance for specific areas requested by the agency.
State Attorneys General
Some state attorneys general have taken on the responsibility of investigating serious allegations of officer misconduct, including officer-involved shootings and deaths in custody. Local prosecutors, who often have close working relationships with police departments through routine criminal cases, may be perceived as biased and unable to fairly lead a case. A district attorney’s office that relies on testimony from a police officer on the witness stand one day may have a hard time investigating that same officer the next day – and subsequently charging him or her with a crime. This bias can be addressed by deploying a special prosecutor or state attorney general’s office to oversee police investigations and undertake any prosecutions that follow. State attorneys general in Maine, New Jersey, and New York oversee investigations and prosecutions of deadly uses of force by police officers; the Minnesota Attorney General’s Office is prosecuting the officers involved in the death of George Floyd; and a Nebraska law provides for the appointment of a special prosecutor for deaths in police custody. State leaders have an important role to play in police accountability, serving as a crucial fail-safe if local leaders decline to engage, but they are not always effective in that role. For example, New York enables its state attorney general to investigate and prosecute the deaths of unarmed persons at the hands of police, rather than local prosecutors; of 43 cases investigated so far, none has resulted in a conviction. Indeed, in some cases, such as when state attorneys lack experience or interest in investigating police misconduct, the district attorney’s office may be the better entity to conduct these investigations.
A district attorney’s office that relies on testimony from a police officer on the witness stand one day may have a hard time investigating that same officer the next day – and subsequently charging him or her with a crime.
In addition, independent accountability mechanisms such as the Baltimore State’s Attorney’s Public Trust and Police Integrity Unit are designed to objectively investigate and prosecute cases against police officers. Comprised of experienced attorneys, the agency provides the public with detailed explanations of decisions to decline charging officers accused of excessive force, potentially improving both accountability and transparency. Attorneys general may also bring agency-wide civil litigation against law enforcement agencies in their state, although it is a rare occurrence. California was the first state to do so in a case against the Riverside Police Department in 2000. Since then, the California Attorney General’s Office has brought cases against Anaheim, Maywood, San Francisco, Sacramento, and Stockton, and has pending cases against the Bakersfield Police Department and the Kern County Sheriff’s Office. Other states have followed suit, including New York’s Attorney General, who obtained a consent decree against the Wallkill Police Department in 2001. Other states have followed suit. New York’s Attorney General obtained a consent decree against the Wallkill Police Department in 2001. More recently, the Illinois Attorney General took over the U.S. Justice Department’s investigation and obtained a consent decree against the Chicago Police Department in 2019.
Independent Governmental Review
Another avenue for police oversight involves government agencies outside the police department that review and monitor police practices and policies. Numerous jurisdictions have created inspectors general, police monitors or police auditors that deploy professional staff to scrutinize police policies and serious use-of-force incidents. These entities are independent of police departments and typically report to the mayor or city manager. The inspector general/police monitor model tends to focus on systemwide problems within the department while tracking their policy recommendations to assess whether they have been implemented. The level of staffing, funding, expertise, authority, and responsibilities varies among the diverse set of oversight entities, as has their effectiveness.
Research Evidence
Reducing police misconduct is the principal goal of consent decrees and several empirical studies have linked them to decreases in police misconduct, including improper stops, searches, seizures, and arrests. One study of multiple jurisdictions explored the impact of consent decrees on racial disparities, examining differences in pedestrian and vehicle stops and finding no changes in racial disparities. However, all of these studies are largely descriptive in nature and thus are unable to control for intervening factors that may have independently influenced these outcomes. A recent study using a more rigorous methodology examined the impact of federal pattern-or-practice investigations on police use of fatal force. The research concluded that agencies with consent decrees that included the appointment of a federal monitor resulted in significantly fewer police killings. Unfortunately, the study design was compromised because of unequal pre-trends metrics between treatment and control groups.
Studies documenting changes in public satisfaction with law enforcement have identified improvements in community sentiment towards the police in some of the jurisdictions under consent decrees. Consent decrees have yielded benefits to officers as well, such as the development of new officer wellness programs, reductions in public complaints against officers, in some jurisdictions, and fewer civil litigation judgments and settlements. What is not clear, however, is whether the reforms implemented under consent decrees and the attendant impacts can be sustained over time. Institutionalizing the consent decree’s mandated policies and practices is critical to sustaining reforms. Despite such uncertainty, elements of the consent decrees have been adopted as best practices throughout law enforcement, arguably improving the police profession overall. For example, provisions of consent decrees have been incorporated into the International Association of Chiefs of Police model policies, the Commission on Accreditation for Law Enforcement Agencies standards, and the report of President Obama’s Task Force on 21st Century Policing. In addition, police departments have been prompted to review and improve their agency policies to avoid a federal investigation.
Several chiefs have observed that consent decrees provided the leverage they needed for the mayor and city council to dedicate resources for technical assistance, training, technology and data software upgrades, and other necessities that they would not have otherwise received.
Critics of the DOJ pattern-or-practice program have raised concerns that the cost of consent decrees are exorbitant, particularly because they may take several years. Examining the fiscal impact of the Los Angeles Police Department (LAPD) consent decree, one researcher documented an average of $40 million per year but also noted that the city was able to recoup much of this cost through reductions in financial payouts associated with civil rights and use-of-force lawsuits, which declined by nearly 75%. Moreover, several chiefs have observed that consent decrees provided the leverage they needed for the mayor and city council to dedicate resources for technical assistance, training, technology and data software upgrades, and other necessities that they would not have otherwise received. Skeptics of consent decrees also argue that they make officers more reluctant to do their jobs, with such “de-policing” causing increases in crime. Studies are mixed on this topic, and underscore the complex relationship between consent decrees, the high-profile cases and public outcry that often precipitate them, and any concurrent changes in policing practices and crime. The most comprehensive and rigorous quantitative study of the effects of consent decrees on police activity and crime used a synthetic controls design to find suitable comparison jurisdictions to the 27 pattern-or-practice investigation jurisdiction. Researchers found that most consent decree departments experienced decreases in crime with the exception of jurisdictions for which consent decrees were preceded by high-profile incidents of excessive force, in which crime increased. However, given that only five jurisdictions fell into the high-profile category, this finding is not definitive. Indeed, a study of 72 high-profile officer-involved homicides between 2005 and 2016, most of which were not followed by a consent decree, found 10% to 17% increases in robberies and homicides, a 33% decline in arrests for minor offenses, and no change in arrests for violent crime. This study’s findings suggest that any declines in enforcement and increases in crime in consent decree jurisdictions are likely caused by the high-profile incidents that precipitated the decrees, rather than the decrees themselves. Other studies on this topic employed less rigorous methodologies and yielded mixed findings. One study examined a subset of consent decree jurisdictions compared with those that were not subject to them. Researchers observed a statistically significant but temporary increase in some crime rates in the years immediately following federal intervention, relative to unaffected municipalities. By contrast, a descriptive analysis of stops and arrests before and after the LAPD's consent decree found an increase in the number of pedestrian and vehicular stops and the share of arrests that were filed as felonies. While this study seems to discount the de-policing hypothesis, it was unable to control for other factors that might have influenced the outcomes. Similarly, researchers examining the impact of the consent decree in Cincinnati documented an increase in constitutional policing and a concomitant reduction in crime, suggesting that a tradeoff between effectiveness and equity in policing is not inevitable. Studies of the impact of the Collaborative Reform Initiative efforts have not yet been undertaken, nor has research been conducted on the impact of providing state attorneys general the authority to independently investigate police shootings and other high-profile cases.
Critical Policy Elements
- Altering the definition of what justifies use of force, including deadly force, to employ objective criteria requires legislative changes to supersede case law as well as changes to departmental policies. These changes must be reinforced through training on de-escalation and use-of-force.
- The effectiveness of federal oversight rests to a large degree on the willingness of police chiefs and their officers and staff to cooperate with investigations and commit to agreed-upon reforms. This can be facilitated by a monitor who is skilled in providing technical assistance and serving in a mediation role between the DOJ and the subject agency. Active judicial oversight of consent decree progress can also be beneficial.
- Consent decrees should focus on both accountability and policy changes. These changes should include the revision or elimination of police strategies or tactics that may be ineffective and have damaging consequences for community members, such as zero tolerance or unconstitutional uses of stop-question-and-frisk.
- The DOJ should resume and expand upon its pattern-or-practice program and Collaborative Reform Initiative. However, with 18,000 independent law enforcement agencies in the United States, these programs can only reach a small fraction of problem departments. This makes it important to select agencies for investigation based on data rather than on high-profile incidents that capture media attention. To facilitate this, data on use of force and other relevant metrics must be collected more systematically and published routinely.
- While external oversight entities can enhance accountability, a careful balance of power must be maintained between external oversight and internal chain of command. Police executives should have the primary responsibility for addressing misconduct and retain the ability to fire officers.
Expected Impacts
Preventing Misuse of Force
Addressing excessive force is a core element of almost all federal consent decrees, requiring changes in use-of-force policies, training, reporting, and investigations. Research has found these requirements effective in reducing excessive force. In addition, restricting the permissible use of deadly force to specific circumstances of an encounter and its preceding events, rather than the officer's perception of threat, should, theoretically, reduce excessive force.
Enhancing Transparency and Accountability
Enhancing accountability and transparency are principal goals of federal consent decrees and collaborative reforms, and can also be identified as objectives by local oversight entities, state attorneys general, and inspectors general. Clearer definitions on what constitutes deadly force may also enhance accountability and transparency.
Strengthening Community Trust
Many consent decrees require community surveys to measure trust and satisfaction with law enforcement. However, increased public satisfaction with law enforcement occurred in only some of the jurisdictions that have been subject to consent decrees.
Reducing Racial Disparities
Most consent decrees include provisions prohibiting racial profiling and biased policing, typically requiring implicit bias training and the collection and reporting of racial disparities in stops, searches, and arrests. However, research has not identified a relationship between government oversight mechanisms and reductions in racially biased police practices.
Ensuring Officer Safety
It is not clear whether consent decrees have had an impact on officer safety, but some evidence indicates that they have prompted the establishment of officer wellness programs.
Promoting Public Safety
There is no strong empirical evidence consistently linking government oversight mechanisms to either enhanced or compromised public safety.
