Fairness and Effectiveness in Policing The Evidence (2004) / Chapter Skim
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7 Lawful Policing
7 Lawful Policing
Pages 252-290
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From page 252... ...
We characterize this concern as the lawfulness of the police, as a companion to the concern about their crime control effectiveness. Lawfulness is closely linked to the concept of legitimacy, or the perceptions of citizens regarding police fairness.
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In overturning Brown's conviction, the Supreme Court articulated a constitutional standard of fundamental fairness for the evaluation of police practices -- with regard to practices pertaining to interrogation -- to be applied to states via the Fourteenth Amendment. Brown v.
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Historically, law enforcement was a key instrument of racial repression, in both the North and the South, before the civil rights revolution of the 1960s. Modern criminal procedure reflects the Supreme Court's contribution to eradicating it.
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Even assuming that rules consistent with legitimate policing have been approved by the legislature or adopted by a court, it is necessary for individual officers to actually follow them. The next sections of this chapter review research on the extent to which police follow the rules that govern their behavior in four key areas: interrogations, use of deadly force, searches and seizures, and police corruption.
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From page 256... ...
The second stream of research involves the direct observation of police behavior. One of the earliest empirical assessments of police compliance comes from the research project directed by Donald Black and Albert Reiss that was already under way when the Supreme Court announced its decision (Black and Reiss, 1967a, 1967b)
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1 (1967) ; Otis Stephens et al., Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements, 29 Tenn.
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As a price for holding this monopoly, and because its use is inevitable, there are standards for the application of force by police. When force is appropriate to use, and how much and what kind of force may be used, are all defined both by constitutional rules and by statutes that create a liability for both police departments and individual police officers who misuse the force and authority entrusted to them.
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As a result of these difficult circumstances, virtually every study of police use of force has been based on the records of one or a small number of local police departments.
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. On the other hand, studies of agencies that are forced to open their records because of suits alleging use of excessive force, or Freedom of Information Act suits by media organizations, tend to find more racial disparity in the use of force, a great deal of disparity in the use of lethal force, and a higher rate of shootings of racial minorities that appear to be questionable (Fyfe, 2002)
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. This definition excludes excessive force, since excessive implies that the amount of force exceeds that required to compel compliance.
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Seizures and Searches The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized." Searching citizens and their property is a basic law enforcement tool for solving crimes and building criminal cases against defendants. The framers of the U.S.
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The largest body of social science research on police compliance focuses on the effects of the exclusionary rule. Immediately following Mapp, researchers began a series of studies concluding that, at least in some areas of the country, the exclusionary rule may have caused police officers to adhere more closely to the requirements of the Fourth Amendment (Goldstein, J Crim Law, 1967; Amsterdam, Minn Law Rev, 1974)
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but are relatively rare in the exclusionary rule literature. Older studies sponsored by the American Bar Foundation concluded that police officers knew the relevant constitutional standards and did their best to work around them when searching suspects.13 In addition to being dated, these studies suffer from a reliance on interviews with the police rather than observations of behavior in the field.
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Given that so few of the illegal searches were officially recorded, the exclusionary rule would prove irrelevant to preventing or correcting most violations. The Supreme Court's U.S.
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According to the New York Police Department's Patrol Guide, a police officer who stops, questions, and frisks an individual on the basis of reasonable suspicion must complete a UF-250. In situations in which probable cause exists before stops are conducted, no form is completed.
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In grappling with the issue of police compliance with constitutional or legal standards, it is crucial to understand the nature of the evidence, and stop and search procedures are no exception. Studies based on official records have limitations when they are used for estimating the frequency with which police violate constitutional protections regarding search and seizure.
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Measuring Corruption It is difficult to measure police corruption reliably, because those who have the most knowledge about the corrupt acts are themselves usually implicated in those practices and have a vested interest in keeping these practices undetected (Klockars, 1999:208)
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Communities in which police departments, other state and local government institutions, and the press are vigorous in pursuing corruption may well find it, while communities that are less energetic may not, regardless of how much is actually going on. That is, we lack a measure of corruption that is independent of the effectiveness of the policies and procedures we are trying to evaluate.
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Sherman (1978) examined New York and three other cities that were attempting to reform their police departments.
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Causes of Corruption The research literature is long on theory and short on evidence about what causes police corruption. The putative causes of corruption can be grouped into four categories: characteristics of individual officers, opportunities for corruption, characteristics of police organizations, and characteristics of the larger environment (Walker, 1999:250)
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, detect it (internal affairs investigations of allegations, integrity tests) , and punish it.
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Where public-regarding is the dominant perspective, "good government" reformers have attempted to keep politicians from meddling in police operations, and this presumably has made it less likely for police corruption to flow from elected officials. One might also hypothesize that where political competition is perpetually close (that is, no single party or political group dominates local politics)
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. Their study also found that police departments varied considerably in the climate of integrity.
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Both lethal and excessive force claims are governed by civil suits grounded either in state tort law or federal civil rights laws or both, and excessive force claims also are circumscribed by criminal law. The section next considers the effects of federal civil actions against police departments for "pattern or practice" claims that they promote unlawful behavior.
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At the local level, prosecutors may bring criminal charges against police officers for excessive force under general state laws regarding assault, battery, murder, etc. Some states also have specific statutes that make excessive police force a separate crime.
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Investigations of such violations are conducted by the FBI and then referred to the Civil Rights Division of the Department of Justice. In order for a police officer to be convicted under section 242, the prosecutor must prove that he or she had "specific intent" to deprive an individual of his or her civil rights.27 Federal prosecution and conviction for excessive police force is also extremely rare.
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. Although civil suits alleging excessive force are difficult to win,37 the amount paid in police misconduct cases has grown steadily over the past 30 years,38 and many American cities are now paying massive amounts of 33Cheh, supra note 5 at 260 34Montell v.
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In Los Angeles, civil suits are not recorded in police personnel files, and they are not considered by internal affairs unit in investigating complaints.43 A 1992 investigation found that of 185 officers involved in 100 civil lawsuits in 22 states, only 8 were disciplined; 17 of the officers were actually promoted.44 The outcomes of civil suits are equally ineffective in influencing systemic change within police departments. Studies have shown that neither the Los Angeles nor the New York City police departments make institutional or policy changes in response to successful civil suits.
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Although civil suits do not provide an effective deterrent to excessive force, there are rare instances in which a particular suit results in so much media attention that police departments are forced to respond.49 It is also possible that a particularly large judgment in a small city or town will lead to reform because the financial consequences are more severe when the judgment is paid out from a small budget.50 For the most part, however, the availability of recourse under state law and section 1983 to victims of excessive force has had no influence on police behavior. Federal "Pattern and Practice" Actions In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, under which the federal government has the power to conduct investigations and bring suit against any police department where there is "a pattern or practice of conduct by law enforcement officers...that deprives persons of rights, privileges, or immunities secured or protected by 47Skolnick and Fyfe, supra note 25 at 205.
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From page 281... ...
A 2002 consent decree with the Cincinnati Police Department specifically limits the use of chokeholds, chemical sprays, canines, beanbag shotguns, and 40 mm foam rounds.53 For the most part, these settlement agreements are too recent to determine whether they have actually decreased the use of excessive force by police officers. However, the Vera Institute of Justice has been monitoring police activity in Pittsburgh, which entered the first of the settlement agreements with the Department of Justice in 1997.
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police departments.56 The effectiveness of administrative guidelines intended to deter excessive force depends on whether or not the performance measures and disciplinary actions implemented by police management provide any incentive to abide by the rules. Most police departments measure performance in quantitative terms, for example, how many tickets were given or how many drugs dealers were arrested.57 As a result, police officers are not rewarded for the quality of their work.
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Petersburg.62 Other researchers have also concluded that "whether through act or omission, the chief is the main architect of police officers' street behavior."63 It is not surprising, then, that there is wide consensus that police administrators are significantly more effective than the courts in deterring the use of excessive force. The more difficult question is why so many police departments have failed to provide incentives to individual officers to abide by use of force rules.
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Thus an important role of police departments' policies and procedural rules is to implement federal and state court rulings, along with state statutes and city ordinances. For example, the types of weapons that are made available to officers, the rules for their use, training in weapon use, reporting requirements when they are employed, and the procedures for reviewing the appropriateness of their use, all make up part of a police department's use of force policy, which must be aligned with state and federal statutory and constitutional requirements.
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Internal Inspections Responsibility for enforcing internal standards of conduct lies with police department internal affairs units, or what are increasingly called profes
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In addition, a large and growing number of agencies have undertaken data collection voluntarily. Many of these efforts have yielded publicly available data sets on traffic enforcement patterns (San Jose Police Department, 2001; San Diego Police Departtment, 2000)
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Controlling Corruption With few exceptions, what is known about the effectiveness of various methods to control police corruption is based on the experiences of police leaders and the impressions and expertise of scholars.
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This demand reflects the belief that police internal affairs units, in varying degrees, discourage complaints, fail to investigate complaints thoroughly and fairly, and fail to discipline officers who are found to have committed misconduct. The police and their supporters generally deny that excessive force is a problem and argue that police departments are better equipped to investigate complaints than are people who are not sworn officers.
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Police departments in nearly 90 percent of the big cities are subject to some form of oversight regarding complaints. Citizen oversight also exists with respect to a number of medium-sized and small police departments, along with some county sheriff's departments.
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. Currently, New York City has the only permanent external corruption control agency in the nation, the New York City Commission to Combat Police Corruption.
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