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7 Lawful Policing L earning whether the police have been successful in reducing crime and fear of crime is important to our normative evaluation of the police, as well as our scientific interests in understanding their behav- ior. There is an equally important set of criteria by which citizens make judgments about the police: their fairness and restraint. Concern about these issues arises primarily because the police are authorized to use force and authority in carrying out their mission. When the authority of the state is used, those who are subjected to it have a right to understand its use and to query whether it has been brought against them fairly and justly. We char- acterize 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. Legitimacy is the subject of Chapter 8. The same tools that have enabled researchers to examine what police do, why they do it, and their crime control effectiveness can also be turned to the study of whether the police are fair and legitimate. Some of the earli- est and most important pieces of police research were animated by concerns about fairness and lawfulness. Empirical methods were developed to dis- cover the extent to which the police had discretion in how they behaved and how they used the discretion available to them. The achievement of those studies was to show that the world of policing was shot through with dis- cretion, and that the choices the police made about how to use their discre- tion were only imperfectly guided by the legal standards that they ought to have been following. Concerns about whether the police behave fairly, whether they are racially biased, whether they are corrupt, whether they are 252
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LAWFUL POLICING 253 brutal, whether they are aggressive or trigger-happy have continued to exist and to be investigated using the methods of the social sciences. Our review of the social science evidence on police lawfulness focuses especially on research that examines police compliance with the U.S. Con- stitution, state and other laws, and with the policies of their departments. Concern about police use of force and the intrusive exercise of their author- ity leads political institutions to develop rules that bring police into compli- ance with such standards. The rules were adopted over time to promote the legitimacy of the police, as a rule-bound institution engaged in the even- handed pursuit of justice and as the protector of individual liberty. We summarize research on police compliance with rules and standards for in- terrogations, search and seizure, the use of excessive and deadly force, and corruption. Courts, legislatures, mayors, and city councils impose standards for conduct on police; the empirical question driving much of this work has been the extent to which they are followed--that extent serves as one mea- sure of the legitimacy of police in a free society. POLICE COMPLIANCE WITH THE LAW AND THE CONSTITUTION The legitimacy of police activity is closely tied to police compliance with legal standards. The goal of ensuring lawfulness in police conduct finds expression in rules guarding individuals' rights to liberty and prop- erty, freedom from unreasonable intrusions, and fair and equal treatment. The Fourteenth Amendment to the United States Constitution forbids dep- rivations of life, liberty, or property without due process of law. The "rule of law [means]...that the citizen should be free from arbitrary power" (LaFave, 1965:64). Through their power to enforce laws--or not--police are invested with a great deal of control over the liberty interests of indi- viduals. Concern about these issues has led to sustained scholarly interest in both the question of how the police use their discretionary power and how best to control it. In recent decades, concern about the exertion of arbitrary police power, as well as racial bias in the exercise of police power, has driven important developments in constitutional law. In Brown v. Mississippi (297 U.S. 278, 1935), the Supreme Court invalidated the defendant's conviction by a Mis- sissippi court because the conviction rested almost entirely on a confession extracted through torture. 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 inter- rogation--to be applied to states via the Fourteenth Amendment. Brown v. Mississippi marked the first time the Supreme Court was willing to regulate police practices at the state level, and it set an important limitation on how
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254 FAIRNESS AND EFFECTIVENESS IN POLICING the police can use their force and authority to generate evidence to be used at trial. The role of race in determining how Brown was treated also dem- onstrates how closely the articulation of constitutional criminal procedural rights in the United States has been tied to this country's history of racial discrimination (Klarman, 2000). The constitutional rules that prescribe the manner in which police are allowed to legitimately carry out their tasks have their genesis not only in the Court's concerns about how much state authority is appropriate to use in the pursuit of law enforcement objectives, but also in the Court's continuing concern with the fairness of policing--in particular, with its efforts to guard against racial discrimination. Like Brown, later criminal procedure decisions--a muscular body of interconnected doctrines that govern the everyday machinery of law en- forcement--also were influenced by the Court's interest both in restraining the state and rooting out institutional racism and other forms of bias (Kahan and Meares, 1998). In the law, rules of criminal procedure provide the state-level link between constitutional principles and the daily actions of participants in the criminal justice system. 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. The Court, be- ginning in the 1960s, erected a dense network of rules to delimit the permis- sible bounds of discretionary law enforcement authority. These decisions, while reflecting a concern for the effects of racism, make up a more general regime of criminal procedure that tells individual police officers when and how they can interact with criminal suspects on the street;1 minutely regu- late the nature of police interrogations of suspects in custody;2 and spell out in detail the procedures that police must follow before they conduct searches or engage in related forms of surveillance (LaFave, 1996). These rules con- strain, in both substance and form, the authority of police to maintain pub- lic order.3 Although rarely couched as such, the unmistakable premise of these doctrines was the assumption that the historically empowered groups in communities could not be trusted to police their own police because of the distorting influence of racism. 1See, e.g., California v. Hodari D., 499 U.S. 621, 638-39 (1991) (describing interlocking maze of doctrines governing "consensual encounters," "investigative stops," and "seizures of person"). 2See, e.g., Davis v. United States, 512 U.S. 452, 458-62 (1992) (describing multiple "pro- phylactic" rules designed to conform interrogation to right to counsel). 3See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Kolender v. Lawson, 461 U.S. 352 (1983).
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LAWFUL POLICING 255 Of course, the articulation of rules does not automatically lead to legiti- mate policing. The rules of criminal procedure are not self-enforcing, nor are the laws regulating the honesty and ethical behavior of police officers. Even assuming that rules consistent with legitimate policing have been ap- proved 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. Police Interrogations The Supreme Court began extensive regulation of local police practices in a case involving a clearly unlawful interrogation and racial bias. In a series of cases between 1936 and 1964, the Supreme Court reviewed the particular facts of cases in order to determine whether a confession was voluntary and in accord with the due process clause of the Fourteenth Amendment.4 The difficulties inherent to administering a fact-based vol- untariness test led the Court to develop the more easily administered, and perhaps more effective, method of controlling interrogation techniques in Miranda v. Arizona (372 U.S. 436, 1966). Miranda holds that any confession obtained during custodial interroga- tion is compelled in violation of the right against self-incrimination unless a police officer has first given specific warnings to the person being ques- tioned and unless that person specifically waives those rights. In the famous "Miranda warning," police are required to advise persons they question (1) that they have the right to remain silent, (2) that police are entitled to use any statement they make against them, (3) that they have a right to counsel, and (4) that counsel will be provided if they cannot afford one. Prior to the Miranda decision, the operating standard for confessions or otherwise in- criminating statements elicited from a suspect in custody was "voluntari- ness." Only the Federal Bureau of Investigation (FBI) operated under spe- cific instructions to issue a warning informing suspects in custody of their rights. Miranda is no doubt the best-known criminal procedure decision in the United States. The positive obligation handed to law enforcement as the result of the decision provoked an immediate reaction, reflecting society's division over the police effectiveness issue (Dalton, 1984:62-63). There were complaints that Miranda requirements would undercut the ability of police to catch and convict criminals, and it was predicted that issuing Miranda 4See, e.g., Fikes v. Alabama, 352 U.S. 191 (1957).
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256 FAIRNESS AND EFFECTIVENESS IN POLICING warnings would unnecessarily hamstring police in their pursuit of crimi- nals. Since that time, empirical studies have found that Miranda require- ments only minimally curtailed the investigative function of police (See- burger and Wettick, 1967; Wald et al., 1967; Zeitz et al., 1969; Black and Reiss, 1967a, 1967b; Milner, 1971a; Schaefer, 1971). In a recent opinion in another case involving police powers, the chief justice of the Supreme Court acknowledged the status of Miranda, stating that the ruling "has become embedded in routine police practice to the point where the warnings have become part of our national culture."5 The question is, do police regularly adhere to its strictures? The bulk of the studies of Miranda occurred shortly after the decision.6 Research on the ruling is of two types. A set of effect studies examine confession rates before and after Miranda was decided, to see whether the warnings affected the number of confessions obtained by police. 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). Their findings belied the police conten- tion that interrogation was necessary in obtaining evidence against a sus- pect. Especially in felonies, Black and Reiss noted that there typically was alternate evidence against a suspect that police could rely on, including physical evidence and other witness testimony (1967b:53). They also found, following the Miranda decision, that when police officers initially encoun- tered and arrested suspects, the required warning was rarely given (Black and Reiss, 1967a:102-109). The lack of compliance observed by Black and Reiss may have stemmed from the fact that the decision had been handed down only recently. Subse- quent studies found that police by and large did issue the Miranda warning, albeit in an often perfunctory and superficial fashion (Wasby, 1970; Leiken, 1971; Baum, 1979). Summaries of Miranda effect studies suggest that the warning as it is actually delivered may have resulted in a reduction in confessions of be- 5Dickerson v. United States, 120 S. Ct.2326, 2336 (2000). 6See Neil A. Milner, The Court and Local Law Enforcement: The Impact of Miranda (1971); David W. Neubauer, Criminal Justice in Middle America (1974); John Griffiths and Richard Ayres, Faculty Note, A Postscript to the Miranda Project, Interrogation of Draft Protesters, 77 Yale L.J. 395 (1967); Lawrence S. Leiken, Police Interrogation in Colorado: The Imple- mentation of Miranda, 47 Denv. L.J. 1 (1970); Richard Medalie et al., Custodial Police Inter- rogation in Our Nation's Capital: The Attempt to Implement Miranda, 66 Mich. L. Rev. 1347 (1968); Neil A. Milner, Comparative Analysis of Patterns of Compliance.
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LAWFUL POLICING 257 tween 4 and 16 percent.7 Milner (1971a, 1971b), examining the use of Miranda in four Wisconsin cities, attributed some intercity variation he found to differences in police training and access to other sources of legal information across departments. Miranda studies based on interviews with police or offenders or on official records cannot tell us directly whether police follow the Miranda requirements; for this, the best evidence is direct observation. Leo (1998) has compiled the best data on the topic. In an observational study of police detectives, Leo found that detectives provided Miranda warnings in all the cases in which they were legally required to do so, or in approximately 96 percent of the cases. In the remaining cases, the Miranda warning was not legally required because the suspect was not technically "in custody." Sev- eral other empirical studies also conclude that police overwhelmingly fol- low the guidelines set forth in Miranda.8 Leo also found that police seek to present the Miranda warnings in ways that encourage individuals to waive their constitutional rights. The only social, legal, or case-specific variable that was a significant predictor of the suspect's likelihood to invoke Miranda rights was the existence of a criminal record. After Miranda rights were invoked, 96 percent of suspects were returned to jail; in the remaining 4 percent of cases, detectives contin- ued to question the suspects after informing them that information pro- vided could not be used in a court of law against them. Cassell and Hayman (1998) also observed the implementation of Miranda. They concluded that "evidence suggests that police have adjusted to Miranda by shifting to non-custodial `interviews' to skirt Miranda's re- 7Law & Soc'y Rev. 119 (1970); David W. Neubauer, Confessions in Prairie City: Some Causes and Effects, 65 J. Crim. L. & Criminology 103 (1974); Cyril D. Robinson, Police and Prosecutor Practices and Attitudes Relating to Interrogation as Revealed by Pre- and Post- Miranda Questionnaires: A Construct of Police Capacity to Comply, 3 Duke L.J. 425 (1968); Roger C. Schaefer, Patrolman Perspectives on Miranda, 1971 Law & Soc. Ord. 81; Richard Seeburger and R. Stanton Wettick, Jr., Miranda in Pittsburgh --A Statistical Study, 29 U. Pitt. L. Rev. 1 (1967); Otis Stephens et al., Law Enforcement and the Supreme Court: Police Per- ceptions of the Miranda Requirements, 29 Tenn. L. Rev. 407 (1972); Michael Wald et al., Interrogations in New Haven: The Impact of Miranda, 76 Yale L.J. 1519 (1967); James W. Witt, Non-Coercive Interrogation and the Administration of Criminal Justice: The Impact of Miranda on Police Effectuality, 64 J. Crim. L & Criminology 320 (1973); Evelle J. Younger, Interrogation of Criminal Defendants--Some Views on Miranda v. Arizona, 35 Fordham L. Rev. 255 (1966); Evelle J. Younger, Results of a Survey Conducted in the District Attorney's Office of Los Angeles County Regarding the Effect of the Miranda Decision upon the Pros- ecution of Felony Cases, Am. Crim. L. Q. 32 (1966). 8See Tracey L. Meares and Bernard E. Harcourt, Transparent Adjudication and Social Sci- ence Research in Constitutional Criminal Procedure, 90 J. Crim. L. & Criminology 733, 769, tbl. 11.
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258 FAIRNESS AND EFFECTIVENESS IN POLICING quirements" (p. 228). Although much of their evidence for the change in behavior is anecdotal, Cassell and Hayman do indicate that 70 percent of their observed interviews were custodial, while 30 percent were noncusto- dial. Whether this represents a change from pre-Miranda figures is unclear. Cassell and Hayman further argue that police were less successful in non- custodial interviews. The fact that police have begun to use them more despite their lower rate of success suggests to the authors that, "contrary to the view of some defenders of Miranda, . . . interrogating police officers believe the Miranda rules are harmful to their efforts" (p. 229-230). An- other way of interpreting Cassell and Hayman's finding is that Miranda actually does provide individuals protection against state power. Research in this area is dated, perhaps reflecting earlier findings that police were by and large complying with the letter of the law, and that it did not appear to have much effect on their effectiveness. Other custodial rights issues have not been investigated at all. Because the most compelling re- search in this area involves the direct observation of police behavior, in- cluding both by patrol officers and detectives, it is laborious and expensive to conduct. The resulting data typically represent only one jurisdiction, making it difficult to infer the effects of departmental policy and other man- agement-level factors on the implementation of legal rules. Excessive and Lethal Force The potential for using force underlies many of the functions exercised by the police. In fact, one definition of the police is that it is the body lawfully authorized to exercise lethal force against citizens of the state, hold- ing a virtual monopoly over this power. As a price for holding this mo- nopoly, and because its use is inevitable, there are standards for the applica- tion 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. In addition, police administrators usually strive for economy in the use of force; good police work, in this view, is policing that employs only the force that is required in a particular situation, and not more. A key concern to policing in the 21st century is the proper use of force, since the real or perceived misuse of force can thoroughly and quickly undermine police legitimacy. In the United States, use of lethal force has been a major source of conflict between minority groups and the police since the inception of the institution (Walker, 1977). Numerous studies have demonstrated that blacks are shot and killed by the police in numbers that are vastly dispro- portionate to the number of whites who are shot and killed. Between 1950
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LAWFUL POLICING 259 and 1960, one study found that blacks were killed by Chicago police at a rate of 16 per 100,000, compared with a rate of 2 per 100,000 for whites (Robin, 1963). From October 1966 to October 1974, the Memphis Police Department recorded approximately 225 instances of firearm discharges to attempt to stop fleeing felon suspects; 114 of those shot by police were suspected of nonviolent property crimes. Of the 114 shot, 96 were black. In a study of fleeing felons in Memphis between 1969 and 1974, one researcher found that police officers shot and killed 13 blacks and 1 white person (Fyfe, 1982). Many see such disparities in the exercise of force lying at the core of challenges to the legitimacy of policing in the United States in the 21st century. The constitutional rule adopted by the Court to circumscribe the use of deadly force by police officers is a product of another case, Tennessee v. Garner. In 1985, the Supreme Court overturned that state's permissive flee- ing felon rule, which allowed police officers to use "all the means necessary to effect an arrest," even of an unarmed fleeing felon, after notice of inten- tion to arrest was given. Scholars have found that guidelines contained in Garner led to a few changes in state law. However, by 1990 only 4 of the approximately 30 states whose laws fell outside the Garner boundaries had changed their laws to bring them into compliance with Court guidelines.9 Most of the remainder continued to legally authorize shootings of nonvio- lent fleeing felons (Fyfe and Walker, 1990). There were more changes in the administrative policies of departments governing police use of force (Skol- nick and Fyfe, 1993). These rules in turn have been evaluated and appear to have had an effect on police shootings. Tennenbaum (1994) concluded that Garner reduced fatal police shootings in the United States by about 60 per year. This is a difficult research area. There is no central repository of data on police use of force, and the data collected nationally by the FBI on the use of lethal force are deeply flawed. They are voluntarily submitted and they do not include injuries that fall short of death. The data that are sub- mitted are known to be inaccurate, based on comparisons between them and other data sources (Fyfe, 2002). Gaining access to local records on this potentially explosive and politically sensitive topic is difficult, and agencies have much to lose by cooperating with researchers. 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. 9See, e.g., Paul G. Cassell and Bret S. Hayman, Police Interrogation in the 1990s: An Em- pirical Study of the Effects of Miranda, in The Miranda Debate: Law, Justice, and Policing 222, 231 (Richard A. Leo and George C. Thomas III eds., 1998) ("Our data thus support the emerging consensus that police play by the Miranda rules.").
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260 FAIRNESS AND EFFECTIVENESS IN POLICING Furthermore, it makes a difference how the data are obtained. On one hand, studies conducted in agencies that voluntarily open their records to researchers appear to represent agencies that are most confident of their professionalism. In general, these studies show that racial minorities are subjects of police force at higher rates than for whites, but that shootings by police are fairly racially balanced (see, for example, Fyfe, 1981, and Blumberg, 1981). On the other hand, studies of agencies that are forced to open their records because of suits alleging use of excessive force, or Free- dom 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). For example, Meyer (1980) found in Los Angeles that blacks were more often unarmed when they were shot, and Fyfe (1982) found that blacks in Memphis were more often shot in circum- stances that were not as threatening to the officer. Official case files typi- cally are the source of data on these incidents, and these documents present a version of events in which every incentive exists for the organization to present a favorable version of events, and much of the information is based on paperwork completed by the officer who used the force. One of the few firm conclusions that can be drawn from this research is that rates of police use of force and lethal force are highly variable. Fyfe (2002) analyzed the results of a project conducted by the Washington Post that assembled data on fatal police shootings in 51 large municipal and county police and sheriff's departments during 1990-2000. Fatal shootings rates for county police departments varied by a factor of 14, while for city departments the ratio of shootings from top to bottom was 8 to 1; among sheriff's departments, it was almost 6 to 1. In a seven-city study by Milton et al. (1977), the top to bottom ratio was also 6 to 1. Another general and important conclusion from these analyses is that most police use of force is nonfatal. In one 6-agency study, only 18 percent of adult custody arrests involved the use of physical force or threats of physical force, and most of the force was confined to threats, the use of restraints, weaponless tactics, and control holds (Garner and Maxwell, 1999). A final conclusion is that, as noted above, there is usually racial disparity in the use of nonlethal force, and often considerable racial disparity in the use of lethal force. Despite problems with the data, there is evidence of the positive effects of legal and administrative efforts to control police use of force. In a study of the use of force by the New York police department, Fyfe (1979) found that a policy change by that agency led to a precipitous drop in shootings by officers there. He also found that New York City police rarely shot un- armed people. Sparger and Giacopassi (1992) conducted a follow-up study in Memphis, the jurisdiction in which the Garner decision originated; they
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LAWFUL POLICING 261 found a dramatic reduction in racial disparities in police shootings in the post-Garner period. In a study in Philadelphia, Waegel (1984) used data collected from media reports by a nongovernmental organization, the Police Project of the Philadelphia Public Interest Law Center, to examine the effect of a 1973 state statute restricting use of force by police officers. He concluded that officers did not comply with the statute, and that compliance did not in- crease with time (p. 128): "With but one exception (1977), in every year the most frequent category of lethal force incidents involved an unarmed per- son who was fleeing after the commission of a felony (1970-1972) or an unarmed person who had not committed a violent felony (1974-1978)." However, in a later analysis, Skolnick and Fyfe (1993) concluded that ad- ministrative changes imposed by the city's mayor Frank Rizzo worked against the intent of the statute. In response to the state legislation, he re- scinded the city's long-standing and more restrictive deadly force policy, thus effectively expanding the potential role for deadly force in the city. Later, when a new mayor reestablished the more restrictive deadly force policy, fatal shootings declined in Philadelphia by 67 percent in the follow- ing year (Fyfe, 1981). Skolnick and Fyfe (1993) were also critical of the use of media reports as a source of data for police shootings, finding that one- third were not reported in the press. (For more on this, see also Fyfe, 1988 and 1987). The committee has deliberated on the problems inherent with data col- lection on police use of lethal force; we remain convinced that the obliga- tion to collect such information outweighs its inherent difficulties. As we have already noted, an effort to collect these data has been undertaken by the International Association of the Chiefs of Police (IACP). Like the development of the Uniform Crime Reports in the early part of the 20th century (Cross, 1917), implementing a voluntary data collection initiative on the use of force by police agencies is a challenging endeavor filled with complexity and the potential for error and subversion. While operationalizing concepts can be difficult in any large national study, the definitional problems in this area are readily apparent. The IACP defines police use of force as "the amount of force required by police to compel compliance by an unwilling subject" (Henriquez, 1999:20). This definition excludes excessive force, since excessive implies that the amount of force exceeds that required to compel compliance. If anything, it sounds like a definition for "reasonable" force, not use of force more generally. It also imposes a normative standard, forcing localities to define the amount of force required to compel compliance and then count those instances in which that level of force was used. A better definition would rely on the officers' overt forceful behaviors, whether justified or not, rather than on
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262 FAIRNESS AND EFFECTIVENESS IN POLICING divergent local interpretations of how much force is necessary to compel compliance. Furthermore, the anonymous nature of the data collection means that there is no way to check the reliability or validity of the data. The voluntary nature of agency reporting also has several undesirable con- sequences, most notably that the resulting collection of data cannot be treated as a representative sample of police in the United States. Therefore the data cannot be used to draw inferences about police more generally. Furthermore, since there is no mechanism for ensuring consistent reporting by agencies, the data also cannot be used to calculate trends in police use of force (Henriquez, 1999). Many of the problems with the IACP data will probably iron them- selves out as police agencies continue to participate in the initiative and develop standards for reporting. Even if the data collection becomes rou- tine, there is still one fundamental problem: the anonymous reporting sys- tem means that data from this study cannot be merged with data from other sources, such as the Uniform Crime Reports, the census, or other data sources. This limitation means that the range of potential explanatory vari- ables will be limited; thus the data are not well suited for explaining differ- ences among police organizations. The development of measures useful for assessing interagency varia- tions in use of force is still in its infancy. Although isolated studies have collected national data on police use of force, the only systematic effort to record police use of force nationally is still several years away from realiz- ing its potential as a data source on policing. The committee recommends legislation requiring police agencies to file annual reports to the public on the number of persons shot at, wounded, and killed by police officers in the line of duty. As long as the only comprehensive national data set on police use of force continues to operate in a voluntary and anonymous fashion, it will fail to capture the data that are, arguably, the most important of all. 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 build- ing criminal cases against defendants. The framers of the U.S. Constitution recognized the state's legitimate interests to engage in searches, but they were so concerned about the risks of abuse that they enshrined their pro- scription of "unreasonable" searches and seizures in the Fourth Amend- ment, the first of several to address concerns about due process of law.
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280 FAIRNESS AND EFFECTIVENESS IN POLICING and institutional change can be explained by the dominant viewpoint among public officials and police departments that civil damages are the cost of doing business rather than indicative of problematic patterns or practices.47 In Los Angeles, the cost of civil suits is considered "a reasonable price for the presumed deterrent effect of the [police] department's most violent re- sponses to lawbreaking."48 In an early study of this matter, LaFave collected data prior to Mapp v. Ohio's restrictions on search and seizure (LaFave, 1965). He identified three potential pre-Mapp sanctions for unconstitutional arrests and searches in Kansas, Michigan, and Wisconsin: tort suits, criminal penalties, and admin- istrative sanctions. Officers interviewed in the three relevant states expressed little concern about the threat of a tort action for false imprisonment fol- lowing an improper arrest. In all three states such suits were infrequent and typically brought only when there was an allegation of extreme physical force and violence. Similarly, researchers could not find one instance of criminal prosecution against a police officer for an unconstitutional arrest. Finally, LaFave notes that department discipline for arrest was infrequently used, especially if the person arrested was guilty. 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 ex- cessive force has had no influence on police behavior. Federal "Pattern and Practice" Actions In 1994, Congress enacted the Violent Crime Control and Law En- forcement Act, under which the federal government has the power to con- duct investigations and bring suit against any police department where there is "a pattern or practice of conduct by law enforcement officers...that de- prives persons of rights, privileges, or immunities secured or protected by 47Skolnick and Fyfe, supra note 25 at 205. 48Patton, supra note 29 at 801. 49Chevigny, supra note 32 at 101. 5042 U.S. 14141 (1994).
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LAWFUL POLICING 281 the Constitution."51 As of October 2001, the Department of Justice was in the process of investigating 13 agencies for a pattern and practice of police abuse. Six additional investigations resulted in settlement, four through con- sent decrees and four through settlement agreements.52 The latest of these agreements, issued September 4, 2002, between the department and the police of Columbus, Ohio, came only after a civil complaint was filed. Generally, reforms introduced as the result of these agreements include implementing agreed-on best practices, including reporting systems and early warning systems. Provisions regarding the use of force are included in all of the settlement agreements. Each consent decree creates a role for a court-appointed monitor who oversees compliance with the agreement. The police departments involved are required, among other things, to improve officer training regarding the use of force, to provide detailed reports of each incident of force, and to initiate internal investigations whenever a criminal or civil suit alleging misconduct is brought against an officer. A 2002 consent decree with the Cincinnati Police Department specifically lim- its 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 deter- mine 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 agree- ments with the Department of Justice in 1997. It reports that Pittsburgh police are largely in compliance with the consent decree.54 In light of this report, this approach to deterring excessive force appears promising, al- though its effectiveness in implementing permanent reform remains to be seen. 51U.S. Department of Justice, Civil Rights Division, Special Litigation Section, "Frequently Asked Questions," http://www.usdoj.gov/crt/split/faq.htm (June 19, 2002). The settlements covered the following agencies: Pittsburgh Bureau of Police, PA (consent decree, 1997); Steubenville Police Department, OH (consent decree, 1997); New Jersey State Police (consent decree, 1999); Los Angeles Police Department, CA (consent decree, 2001); District of Colum- bia Metropolitan Police Department (settlement agreement, 2001); Highland Park Police De- partment, IL (settlement agreement, 2001). As of April 12, 2002, the Department of Justice has also entered into a consent decree with Cincinnati Police Department, Ohio; see http:// www.usdoj.gov/crt/split (June 19, 2002). 52Memorandum of Agreement between the United States Department of Justice and the City of Cincinnati, Ohio and the Cincinnati Police Department, http://www.usdoj.gov/crt/split (June 21,2002). 53Vera Institute of Justice, "Pittsburgh's Experience with Police Monitoring," http:// www.vera.org/project/ project1_1.asp?section_id=2&project_id=13 (June 14, 2002). 54The Christopher Commission, supra note 10 at 26.
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282 FAIRNESS AND EFFECTIVENESS IN POLICING Administrative Reform Research indicates that clear administrative guidelines regarding the use of force, coupled with consistently imposed sanctions for misconduct, reduces the incidence of excessive force. Not surprisingly, written policies are not in themselves an effective deterrent to police misconduct. Since 1979, the Los Angeles Police Department has restricted the use of force to that which "is reasonable and necessary" once "other reasonable alternatives have been exhausted."55 Clearly, this rule had little influence on the police officers involved in the beating of Rodney King in 1991. However, a writ- ten guideline can be sufficient in itself to encourage brutality. For example, the Los Angeles Police Department's official position for many years was that a chokehold is a nonlethal pain compliance technique, while virtually every other major police department considered the use of chokeholds to be a form of potentially lethal force. Perhaps as a consequence, the number of chokehold-related deaths in Los Angeles during the late 1970s was twice the combined total of the remaining 20 largest U.S. police departments.56 The effectiveness of administrative guidelines intended to deter exces- sive force depends on whether or not the performance measures and disci- plinary 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. Skolnick and Fyfe compare this to measuring the performance of lawyers by the number of their cases without consider- ing whether the cases were won or lost.58 Furthermore, this approach en- courages officers to ignore guidelines when doing so helps the bottom line. The disincentives provided by performance measures can be exacerbated by the failure of police departments to take disciplinary action when it be- comes apparent that an officer has violated restrictions on the use of force. The Christopher Commission reported that there were a significant number of Los Angeles police officers who persistently ignored written guidelines regarding force, and, instead of being punished, they were often rewarded with positive evaluations and promotions.59 When disciplinary actions were taken, the punishments were inappropriately lenient.60 Independent com- 55Skolnick and Fyfe, supra note 25 at 42. 56Id. at 125. 57Id. 58Id. at iii-iv (foreword). 59Id. at 167. 60See Human Rights Watch, supra note 1 at 63-64.
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LAWFUL POLICING 283 missions in New York City and Boston also found many shortcomings in the way that internal affairs divisions handled complaints.61 The influence of police leadership over individual officers, whether through performance and disciplinary measures or through general tone- setting, may be substantial. In a study of the Indianapolis and St. Petersburg police departments, Terrill found that the official position of police admin- istrators on the "style of policing practiced" was directly related to the amount of force used by officers. Police leadership in Indianapolis pro- moted a get-tough approach to policing, while St. Petersburg's approach was more toned down and emphasized a problem-solving model. As a re- sult, police officers in Indianapolis were more likely to use higher levels of force than those in St. 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 admin- istrators are significantly more effective than the courts in deterring the use of excessive force. The more difficult question is why so many police de- partments have failed to provide incentives to individual officers to abide by use of force rules. One explanation is that there is public and political pressure on police leadership to get tough on crime rather than deter the use of excessive force. Only when there is a particularly outrageous and well- publicized incident of police brutality does public attention turn to the issue of excessive force. Over the past 15 years, there have been a number of police beatings that received significant media attention and resulted in pub- lic and political demands for reform. Civil rights attorneys believe that this increased scrutiny of police force has led to change: "Fifteen years ago, police officers would beat people up all the time. Today, there are more limits on police.... People are also more sensitized to the issue and won't tolerate as much violence."64 Thus, to a certain extent, it appears that pub- lic and political pressure is the most effective deterrent to the use of exces- sive force. Policies and Procedures Internal accountability mechanisms have been developed at the initia- tive of police departments themselves, often in response to lawsuits or pres- 61William Terrill, Police Coercion 233 (2000). 62Skolnick and Fyfe, supra note 25 at 136. 63E.g., the 1989 beatings of alleged suspects in the Carol Stuart murder in Boston; the 1991 beating of Rodney King in Los Angeles; the 1997 beating and rape of Abner Louima in New York City. 64Patton, supra note 29 at 801 (quoting a civil rights attorney she interviewed).
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284 FAIRNESS AND EFFECTIVENESS IN POLICING sure from citizen groups concerned about police misconduct. In some de- partments, internal mechanisms have been imposed by the federal courts as a part of the settlement of civil suits brought by the U.S. Department of Justice, in addition to suits by private litigants in Pittsburgh, Los Angeles, and Cincinnati. Finally, the constitutional decisions discussed above have had the effect of invalidating both state statutes and the policies and proce- dures of many police departments; many internal policies and procedures take the form they do today in order to conform with those decisions. Thus an important role of police departments' policies and procedural rules is to implement federal and state court rulings, along with state stat- utes and city ordinances. For example, the types of weapons that are made available to officers, the rules for their use, training in weapon use, report- ing requirements when they are employed, and the procedures for review- ing the appropriateness of their use, all make up part of a police depart- ment's use of force policy, which must be aligned with state and federal statutory and constitutional requirements. Most of the research on police compliance with administrative policies therefore examines the implemen- tation of constitutional guidelines in police agencies. It is at the administra- tive level that controlling police behavior becomes a "management prob- lem." However, to date there has been little research on the effectiveness of managerial and organizational strategies to motivate officer compliance with department policies and procedures. In contrast to the private sector, relatively little has been attempted, much less evaluated, to evaluate the effect of varying pay and perquisites, for example. More has been written on the impediments to managing police, including the effect of police unions, police culture, and the law and order politics of many cities. Administrative Rules The principal mechanism for building and maintaining accountability involves administrative rulemaking by police departments. This approach involves attempting to control the exercise of police officer discretion in critical incidents through (1) written policies that structure and confine dis- cretion, (2) the requirement that officers complete written reports about particular incidents, and (3) review by supervisory officers (Davis, 1975; Goldstein, 1977; Walker, 1993). One significant application of this approach on which there has been some research involves police officer use of lethal force (Fyfe, 1979; Geller and Scott, 1992). As we have noted, beginning in the early 1970s police departments replaced the permissive fleeing felon rule with the more restric- tive defense of life standard. Official policies also prohibited warning shots and other uses of firearms. Early studies found that administrative rules
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LAWFUL POLICING 285 were successful in reducing the number of firearms discharges and the num- ber of citizens shot and killed (Fyfe, 1979; Sparger and Giacopassi, 1992). Research on administrative rulemaking has since been extended to other types of incidents involving the use of police authority. These include stud- ies of the use of physical force (Walker, Alpert, and Kenney, 2001), high- speed pursuits (Alpert, 1997; Alpert and Dunham, 1990), domestic vio- lence (Sherman 1992), the use of canines, and nonlethal technologies (e.g., pepper spray). There is limited evidence on the effectiveness of administra- tive controls in these areas, however. Controls over high-speed pursuits do appear to reduce the number of pursuits and consequently the number of injuries and fatalities (Alpert, 1997). Research on the use of physical force has been limited to investigating the prevalence of force incidents and the factors associated with its use (Bureau of Justice Statistics, 1999; Geller and Toch, 1995). The deterrent effect of mandatory arrest in domestic violence incidents has been investigated through a number of experiments, but there is limited evidence regarding officer compliance with domestic violence poli- cies in nonexperimental conditions (Sherman, 1992). Early warning systems represent a new internal accountability mecha- nism that has developed in recent years. In brief, an early warning system is a data-based management tool designed to identify officers who appear to have performance problems and to subject those officers to some ad- ministrative intervention, usually in the form of counseling or retraining (Walker, Alpert and Kenney, 2001). Early warning systems are an out- growth of the development of administrative rule-making since the required reports principally use data on use of force and other actions to analyze officer performance. Early warning systems have been growing rapidly and are recognized as one of the best practices in police accountability (Walker, Alpert, and Kenney, 2001). However, the evidence for the success of early warning systems is limited at this point. The only evaluation of early warning sys- tems found that they were effective in reducing the use of force and citizen complaints among officers subject to intervention, but the study itself was limited by a number of methodological problems, including questions about the official data that were used (Walker, Alpert, and Kenney, 2001). Never- theless, these systems embody the trend toward increased accountability of the police to the community--a trend that speaks directly to the importance of both perceived and objective legitimacy of the police. Internal Inspections Responsibility for enforcing internal standards of conduct lies with po- lice department internal affairs units, or what are increasingly called profes-
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286 FAIRNESS AND EFFECTIVENESS IN POLICING sional standards units. Despite the fact that police management experts rec- ognize that internal affairs units play a critical role, very little research has been conducted on these units. Little is known about the organization, man- agement or staffing of these units. Nor is much known about the investiga- tive procedures used or patterns of discipline. There is a sizeable anecdotal literature on the failure of these units to maintain accountability and integ- rity (Kerner Commission, 1968; Christopher Commission, 1991; Mollen Commission, 1994), but none of these reports or investigations rises to the level of a scientific study. Police Data Collection The advent of sophisticated information systems and a growing aware- ness of the power of gathering data for internal accountability processes, has encouraged police administrators to routinely collect more data on po- lice operations and practices. Sometimes this is in response to external de- mands for closer police accountability. In the case of the debate over racial profiling, for example, the mandated collection of official data on traffic stops has emerged as the principal strategy on the part of civil rights groups for ending the practice, defined as a pattern of stopping black and Hispanic drivers on the basis of race or ethnicity rather than suspected criminal activ- ity (Harris, 1997, 1999, 2002; Police Executive Research Forum, 2000; Ramirez, McDevitt, and Farrell, 2000). As an accountability mechanism, traffic stop data collection operates on the same assumption as administrative rulemaking: that requiring offic- ers to complete official reports on critical decisions will simultaneously put them on notice that their actions are being scrutinized and create a system- atic data base that will permit determination of whether a pattern of illegal racial or ethnic discrimination exists. This is an area in which there is rapid policy change. A growing number of states have enacted laws requiring law enforcement agencies to collect data on traffic stops. 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). A great deal of controversy surrounds the proper benchmark for interpreting traffic stop data (Bland et al., 2000; General Accounting Office, 2000; Har- ris, 1997, 1999, 2002). For the purposes of litigation, this question has been addressed by the use of observational studies of traffic patterns on interstate highways conducted in Maryland and New Jersey (Harris, 2002). In these cases, the data were interpreted as supporting the contention that race discrimination existed in those instances. More difficult is the question of determining the extent to which pat-
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LAWFUL POLICING 287 terns in traffic enforcement that indicate racial or ethnic disparities repre- sent patterns of illegal discrimination: the challenge is to develop an appro- priate benchmark. Official reports to date generally find racial and ethnic disparities in traffic stops, searches, and arrests (San Jose Police Depart- ment, 2001). With respect to traffic stops, these studies use the resident population of the specific area in question as the benchmark. Walker (2001) argues that the resident population is not a valid benchmark because it does not represent the at-risk driving population, and that related benchmarks using estimates of the driving-age population by race and ethnicity are simi- larly flawed. Attempts to investigate possible discrimination in field stops of pedestrians with resident population data serving as the benchmark are similarly flawed because population data do not reflect either the overall pedestrian population or pedestrians who exhibit legitimate suspicious be- havior. Walker proposes using an early warning system approach in which the activity levels of groups of officers with comparable assignments serve as a benchmark for individual performance. In a sense, this would mean measuring police officers against other police officers, as opposed to mea- suring the citizens stopped by police against some satisfactory benchmark. With respect to searches and arrests of people stopped by police, the popu- lation of drivers or pedestrians stopped serves as the appropriate bench- mark, thereby facilitating the research effort. Other strategies for eliminating racial profiling have been advanced, including exhortation, training, in-car video cameras, and various adminis- trative controls, such as requiring officers to notify dispatchers about key features of stops (Fridell et al., 2001; Cohn, Lennon, and Wasserman, 1999). To date there are no studies investigating the effect of any of the proposed reforms designed to eliminate discrimination in traffic enforcement, al- though a General Accounting Office (2000) report on searches by the U.S. Customs Service suggests that administrative controls can simultaneously reduce racial disparities and increase the efficiency of enforcement efforts. 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. The U.S. General Accounting Office (1998:19-25) surveyed practitioners to identify strate- gies for preventing police corruption, especially that which is drug-related. They noted the importance of a commitment to integrity by top department leaders, holding managers accountable for corruption in their units, more rigorous hiring policies and more training for recruits, empowering inde- pendent auditors to oversee the handling of corruption allegations, and changing the police culture from protecting one's peers to protecting integ-
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288 FAIRNESS AND EFFECTIVENESS IN POLICING rity. The study also reported the practitioners and experts' recommenda- tions on detecting corruption more effectively. The practitioners surveyed stressed the importance of placing officers suspected of corruption under surveillance, turning corrupt officers to testify against others involved in corrupt practices, interviewing arrested drug dealers to get information on police corruption, employing proactive investigations (including integrity testing) in areas that have high concentrations of drug-related corruption complaints, and developing an early warning system of factors and behav- ior patterns that may indicate a corruption problem. The above list is consistent with research-based recommendations, which have also included rewarding officers for good performance, pursu- ing federal prosecution, and working with the news media to mobilize pub- lic opinion to fight corruption and pressure elected officials to support ef- fective policies (Walker, 1999:254-63). We note that the systematic evidence supporting these claims is almost nonexistent, due to the extreme difficulty of obtaining valid and reliable measures of police corruption. EXTERNAL ACCOUNTABILITY MECHANISMS The tradition of local accountability of police is sometimes extended by the creation of external bodies charged with overseeing police operations. The logic behind this strategy seems apparent: what police do is important, and they are one of the most visible parts of local government. Where there is dissatisfaction with police internal accountability mechanisms, citizen groups have demanded the creation of external mechanisms as well. In re- cent decades citizen dissatisfaction, reflecting an apparent loss of perceived legitimacy, has been primarily centered in the black community and has traditionally been labeled "the police-community relations problem" (Kerner Commission, 1968). Citizen Oversight Bodies The principal demand for external accountability by civil rights groups has been for the creation of citizen oversight agencies, commonly termed civilian review boards (Walker, 2001). Specifically, citizen groups have de- manded that an external oversight agency be given responsibility for receiv- ing, investigating, and disposing of citizen complaints against agencies. This demand reflects the belief that police internal affairs units, in varying de- grees, discourage complaints, fail to investigate complaints thoroughly and fairly, and fail to discipline officers who are found to have committed mis- conduct. The police and their supporters generally deny that excessive force is a problem and argue that police departments are better equipped to in- vestigate complaints than are people who are not sworn officers.
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LAWFUL POLICING 289 External citizen oversight agencies have been growing steadily since the late 1970s. By 2001 these were slightly more than 100 such agencies. 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. These figures are based on the broadest definition of external oversight and include any procedure in which there is some citizen input into the review process, however limited, by persons who are not sworn police officers. Virtually all of these agencies are autho- rized by local ordinance (Walker, 2001). Because of the bargaining that takes place in the legislative process that created them, citizen oversight agencies take a number of different forms. Walker (2001) classifies them by four different models of oversight: under this scheme, only Class I systems have original jurisdiction with regard to the investigation of complaints. Other institutional arrangements include boards that play an auditing or monitoring function with regard to police-run investigations. There is very limited evidence regarding the effectiveness of citizen over- sight agencies. As already noted, considerable anecdotal evidence exists re- garding the shortcomings of internal affairs units (Kerner, 1968; U.S. Com- mission on Civil Rights, 1981), but no comparative studies indicating that external citizen oversight agencies are more effective than internal affairs units. This kind of evaluation of internal accountability mechanisms poses a number of difficulties (Brereton, 2000; Walker, 2001). The published lit- erature generally fails to take into account the multiple goals of oversight agencies; these include, but are not limited to, conducting thorough and fair investigations of citizen complaints and building citizen confidence in the complaint process. Comparative studies of their effectiveness are also diffi- cult because local external and internal units or boards tend to handle very different kinds of cases and hear different types of allegations (Hudson, 1972, Walker, 2001). Blue Ribbon Commissions A traditional approach to pressing for greater accountability has been through the formation of authoritative commissions that investigate police problems and issue reports with recommendations for reform (Walker 1985). At the national level, the most important examples include the 1931 Wickersham Commission (National Commission on Law Observance and Enforcement, 1931), the President's Crime Commission (1967), the Na- tional Advisory Commission on Civil Disorders (the Kerner Commission) of 1968 and the American Bar Association Standards for Urban Police Func- tion (1973). There have also been numerous state and local commissions created in the wake of local legitimacy crises; the 1922 Cleveland Crime
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290 FAIRNESS AND EFFECTIVENESS IN POLICING Survey initiated this trend. Other notable commissions include the Christo- pher Commission, formed in response to events associated with the Rodney King incident in Los Angeles, which published its findings in 1991; and both the Knapp Commission and the Mollen Commission, created in re- sponse to allegations of widespread corruption in the New York City Police Department. Blue ribbon commissions have played an important role in setting gen- eral standards for the police and in that respect guiding reform efforts across the country. In some cities, reform-minded police chiefs have been able to use the legitimacy crisis engendered by the investigations conducted by com- missions to effect needed changes in their departments (Murphy and Plate, 1977). The major weakness of this approach to reform is that blue ribbon commissions are temporary agencies that disband following publication of a final report. Consequently, there has been no mechanism to ensure imple- mentation of their recommendations (Walker 1985). For example, there has been controversy over the implementation of the Christopher Commis- sion report in Los Angeles (Christopher Commission, 1991; Bobb et al., 1996). Walker (2001) argues that the role of blue ribbon commissions has been superseded by the auditor model of citizen oversight, which involves a permanent body that has the capacity to oversee and report on the imple- mentation of recommended reforms (San Jose Independent Auditor, 1993- present; Special Counsel, Los Angeles County Sheriff's Department, 1993- present). Currently, New York City has the only permanent external corruption control agency in the nation, the New York City Commission to Combat Police Corruption. Not enough is known about the extent of police lawfulness, or police compliance with legal and other rules, nor can the mechanisms that best promote police lawfulness be identified. The committee recommends re- newed research on the lawfulness of police and a coordinated research em- phasis on the effectiveness of organizational mechanisms that foster police rectitude.
Representative terms from entire chapter: