Introduction
While concerns have persisted for decades, the police killing of George Floyd and the subsequent nationwide protests of the past few years have sharpened the focus on the American policing system (Vera Institute). In 2020, public trust in police dropped to record lows (Pew). 58% of Americans said policing “needs major changes,” while 36% said “minor changes” were required (Gallup). While trust in police has bounced back to 2014–2019 levels for all racial groups, support for change in the policing system has not abated (Pew). As of 2022, 50% of Americans still said policing needed “major changes,” and 39% said policing required “minor changes” (Gallup).
Moreover, as protests break out across the United States in the wake of recent escalations over Israeli occupation in Palestine, as police squads increase patrolling around religious areas and political buildings, as the FBI and the Department of Homeland Security issue “public safety concern” bulletins, and as protesters get arrested, questions around policing and police reform are more relevant than ever.
Police reform generally means any policy steps taken by any authority overseeing policing from the federal to the local level to correct characteristic flaws in the policing system and increase police accountability. Academics around the nation have identified several flaws, from conflict-oriented training to the Law Enforcement Officers’ Bill of Rights to qualified immunity. There is less focus on structural policing problems that are harder to identify, let alone on devising a solution for them. Specifically, one structural policing issue is when cops protect other cops, either through the unchecked power of police unions or the relationship between prosecutors and police.
Police Unions
While police unions, like other unions, seek to create better workplace environments and offer benefits to their members, they obstruct police accountability. Many collective bargaining agreements (CBA) that police unions negotiate with local governments stipulate, and often limit, how officers can be disciplined and when (Dharmapala et al., 2021; Levin, 2020). CBAs might also have provisions that necessitate the clearing of an officer’s misconduct or disciplinary record after a set time—in some cases, every 60 days. In 36 states with CBAs, police departments must consult and negotiate with police unions “before imposing any new rule that could affect any term or condition of employment” (Harmon, 2012). These include any police reform measures.
In short, police unions inhibit justice on the “macro-level” by preventing any policies that increase accountability and oversight from being passed and on the “micro-level” by helping officers facing consequences in any kind of accountability proceeding and obstructing the work of prosecutors looking into officer misconduct (Levin, 2020). For example, a University of Chicago study found that after deputies in Florida negotiated their contracts through CBAs, violent misconduct complaints rose by 40% (Dharmapala et al., 2021). The Florida statistic aligns with a 2006 Federal Bureau of Justice Statistics finding that unionized police officers are more likely to receive excessive force complaints and more likely to thwart those accusations in disciplinary hearings (Cato).
To increase officer accountability and create substantial police reform, the unchecked power of police unions must be addressed. As of now, negotiated contracts between local governments and police unions do not allow room for public input, which would act as a check on the loopholes and manipulations of justice often sought by police unions. Creating spaces for public participation and oversight of police contracts could limit the ability of unions to pursue such measures, like allowing officers to review evidence and wait up to 30 days after an instance of misconduct to make an official statement about what occurred (Margolis, 2022; Rushin, 2017). This public participation could look like the California reforms proposed by Catherine Fisk and others for a state law that stipulates “public input on the government’s bargaining proposals for the police union before the negotiation begins and before ratifying a contract" (Margolis, 2022). Fisk’s proposal, or any similar one, was never implemented, and its effectiveness in limiting the power of police unions has never been studied. Police union reform is a very new area of policy research, and it is difficult to identify the drawbacks or benefits of any singular approach.
Police-Prosecutor Relationships
When misconduct does happen, it is usually up to prosecutors to decide whether the officer or officers will face an indictment. However, since prosecutors and police are often coworkers–prosecutors routinely depend on officers for evidence and testimony in cases they work on–it is rare for prosecutors to bring criminal charges against police officers. A 2010 study of 8,300 instances of alleged misconduct involving over 11,000 officers demonstrated the hesitancy of prosecutors to bring charges against officers, as only 3,238 of those allegations led to any sort of legal action (Trivedi and Cleve, 2020). Additionally, sometimes prosecutors must rely on evidence and testimony produced by or tainted by officer misconduct to establish their cases. (Trivedi and Cleve, 2020) When prosecutors are aware of evidence or testimony produced by officers potentially being faulty or simply untrue, they might be “prosecuting with blinders on” to avoid being categorized as “not team-players'' (Trivedi and Cleve, 2020). Finally, prosecutors who have sought to hold police officers accountable have often dealt with police retaliation. For example, when Larry Krasner, Philadelphia’s District Attorney, created a no-call list of officers who had “an extensive history of misconduct”, he was then sued by the Philadelphia Fraternal Order of Police (Levin, 2020).
A simple solution to reform problems presented by the inherently close relationship between police and prosecutors is to bring in external prosecutors or the state attorney general to handle cases where officers could be defendants to avoid jeopardizing the “conflict” that exists in these situations between prosecutors and police officers (Kaste, 2014). This would also limit police retaliation against district attorneys who rely on the police to produce evidence and testimony for their day-to-day cases that do not involve officers. However, it is worth asking whether “punishing” police officers for misconduct will, in and of itself, make communities safer, as there has been much to indicate that neither prosecution nor the incarceration resulting from it deter the behavior being criminalized because of high rates of recidivism. As Trivedi and Cleve point out for the Boston University Law Review, “There is no reason to believe that prosecution and incarceration will work better on police than on the general public" (Trivedi and Cleve, 2020). Despite this, they acknowledge that prosecution still creates legal accountability that results in public trust.
Conclusion
Most Americans recognize that the American policing system is a flawed one that demands attention and comprehensive reform. Even issues that might at first glance have little to do with policing are ultimately impacted by it. Therefore, phenomena such as police protecting other police, either through powerful unions or close relationships between prosecutors and law enforcement, need intervention.
The unchecked power of police unions obstructs justice at both macro and micro levels, impeding policies aimed at increasing accountability and oversight. To address this, curbing the influence of police unions is imperative. Introducing public participation and oversight in police contract negotiations could serve as a step toward limiting the undue influence of unions. While this approach is relatively new and lacks extensive research, it offers a potential pathway to mitigate the impact of police unions on accountability measures.
Moreover, the inherent conflict of interest between prosecutors and police officers creates a significant challenge in holding law enforcement accountable. One solution is to assign state attorney generals or outside prosecutors to handle officer-related cases. While this approach doesn't address all the problems and doesn't necessarily guarantee community safety, it establishes legal accountability and contributes to rebuilding public trust. It is crucial to acknowledge that reforming the system requires a multifaceted approach. Prosecution and incarceration alone may not serve as panaceas, but they do create legal accountability, fostering a sense of trust within communities. Additionally, ongoing research and innovative strategies are necessary to address the complexities of these issues effectively.
Ultimately, these proposed, though admittedly untested, reforms are part of a larger, comprehensive strategy to tackle the policing issue. Incorporating public participation, external oversight, and legal accountability is essential to reshaping the policing landscape and rebuilding trust between law enforcement agencies and the communities they serve.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.
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