Editor's Note: Please see the corresponding number in the "Notes" for the source of the information.
Introduction
Now more than ever, police misconduct has rocketed to the forefront of our national conversation.
Unfortunately, the current system has proven unequipped to handle this misconduct and hold police accountable for their actions. (1) After all, an outsized number of police officers who violate their duties are never tried for their offenses, and those who are fired often “police hop” to policing jobs elsewhere. (2)
To mitigate these issues, some law enforcement agencies have used voluntary databases to track police misconduct with the intent to prevent further malpractice and employment of offending officers. (3) Despite their efforts, these existing database initiatives have largely failed. National reform is imperative. (4)
1. Failures and Subsequent Effects of the Current System
Existing databases face several critical impediments. First, many police departments do not report to them. A study from FiveThirtyEight notes that, “some of the most reliable data sets on police misconduct—usually focused on shootings—come from [the] journalists, researchers or political activists who study it, not the federal agencies which receive local police department reports.” (5) This illustrates the lack of widespread participation in existing databases, which creates significant gaps in accountability. Furthermore, reports of misconduct often lack crucial details regarding offenses committed. The vast majority of reports only provide dates of termination.(6) Finally, some databases are not even publicly accessible, removing yet another crucial element of accountability. (7)
The implications of these existing databases are troubling. Many officers say that, if an incident occurs, they can simply resign and join another department without retribution.(8) This practice has become common enough for officers across the country to have testified to its existence, while assigning it names such as “wandering officers” or “police hopping”. (9)(10) Wandering officers are a threat to the safety of the general public. Studies have shown that previously discharged officers affect the departments receiving them; bad behavior tends to disseminate, and bad practices could be spread by an offending officer in a new department. (11)
Wandering officers are not uncommon. (12) A study published in the Yale Law Journal counted 800+ wandering officers in Florida per year who likely interacted with hundreds of thousands of civilians. (13) The same study noted that, if a police officer left the department before the end of a misconduct investigation, they still had a 39% chance of reemployment—and even a 17% chance if they were terminated. (14) Similarly, a USA Today Network report found that, in the past ten years, nearly 2,500 officers were investigated on 10 or more charges, yet retained their badges. Furthermore, they found 20 officers who each faced 100 or more allegations yet still kept their badge for years. (15) These disturbing findings are supported by a study conducted by the Washington Post which discovered that from 2006 to 2017, of the 1,881 officers in their study fired for misconduct nationwide, 451 officers were able to successfully appeal for a return to the force. (16) This culture of ignoring previous misconduct is aided and abetted by a reporting regimen that is neither public, exhaustive, nor mandatory.
Why A Better Public Database?
In sum, current national database systems face three critical issues. The first issue is that many police departments fail to report to existing national databases; when they do, the reports of misconduct lack crucial details pertaining to the reasons for an officer’s termination. (17) A lack of incentive to report (combined with lackluster information) allows officers to walk from job to job without repercussions. The second issue is that a police officer’s records may be difficult to find (or inaccessible across state lines). State agencies are often reluctant to release details on police investigations, and misconduct information can remain largely scattered in files held by hundreds of different police agencies. (18) This discourages many departments from conducting extensive background checks. The third issue is rooted in the effects of police misconduct data confidentiality. Nearly half of all U.S. states prohibit the public from seeing detailed personnel records of police officer misconduct, and many more have additional barriers to access. (19) This secrecy generates considerable public distrust of police. (20)
Furthermore, in a sizable share of criminal cases, defense attorneys face restrictive barriers in their efforts to assess the credibility of the arresting officer. Many times, their access to the department’s private database and information regarding previous misconduct/settlements is highly restricted. (21) Attorneys must rely on shallow, insufficient public databases, which largely lack the critical information necessary to challenge the accusations against the arresting officer. In instances when the arresting officer may have a history of misconduct—such as abuse of force, planting evidence, or other offenses—this information would be critical for a defense attorney to challenge the credibility of the accusations made against their client. Sometimes, prosecutors can only reveal exculpatory material—also known as Brady letters—about the arresting officers “at the eleventh hour” (too little time for the defense to analyze and use in their case). (22)(23) This process not only engenders difficulty in prosecuting potentially unlawful officers, but it perpetuates future misconduct as well.
To address these issues, the following must occur. First, as TIME succinctly states, “only an act of Congress stipulating mandatory reporting would make all police departments report misconduct—not just the departments with good numbers.” (24) Second, the database must be federal, because federal databases ensure equal reporting requirements and standards across localities. Disorganized regional or local databases result in information barriers, miscommunications, and the eventual hiring of offending officers. Third, the database must be public. Noting that officers may at times “turn a blind eye” to misconduct for fear of retribution from their peers, (25) UCLA Law Professor Joanna Schwartz asserts that public databases could create pressure on agencies to independently better themselves. (26)
As a result, public databases would increase trust within communities. When Michigan began reporting their misconduct cases publicly 18 months ago, it “substantially helped build trust between the police and the community.” (27) Finally, added transparency would also increase procedural accountability with regards to the prosecution of officers accused of misconduct, including overturning convictions on the innocent and providing fairer trials to the accused. Therefore, it is without a doubt that the United States should implement a mandatory, federal police misconduct database—one that is open to the public.
Databases offer a financial incentive to cities as well. In 2014 alone, the 10 cities with the largest police departments paid out $248.7 million in settlements and court judgments in police misconduct cases (many of which are hidden behind confidentiality agreements). (28) The money comes not from the police departments or the officer, but from the city’s own funds, costing taxpayers millions. (29) The financial resources devoted to settling police misconduct cases would be better deployed elsewhere, in such areas as housing, playgrounds, community centers, and schools. Troublesome officers are economic sinks that place substantial burdens on limited resources. A robust, nationwide database that could better inform local departments’ hiring decisions would significantly decrease the financial burdens created by troublesome officers on local governments.
1. Better Than Other Proposals
Establishing a national database of police misconduct is just one of the many solutions that has been proposed as the country debates police misconduct. Existing legislation includes provisions such as: placing a ban on the use of chokeholds (and similar tactics), ending qualified immunity, creating a national policing commission to conduct a review of the U.S. criminal justice system, and many other proposals presented in different bills before the U.S. Congress. (30)
Among these ideas, only a robust national database enjoys vast bipartisan support. As recently as June, a national database of police misconduct has been proposed by Democratic legislators in their Justice in Policing Act, Republican legislators in their Justice Act, and President Trump in his recent executive order on police reform. A better national database is the rare measure that enjoys such broad bipartisan support. (31) In fact, a recent Siena College poll in New York showed that 84% of respondents supported the creation of a national database, a greater rate than for any other proposal. (32)
Other reforms, such as ending qualified immunity, have been called “nonstarters” by the White House. On the other hand, the Democrats have said that “the GOP bill is not salvageable." (33) While it is evident that both parties have substantial differences on their outlook for police reform, they share the view that a rigorous national database of police misconduct is a critical step in the right direction in terms of curbing the police misconduct that continues to plague the United States.
Conclusions/Recommendations
While various partisan proposals have faced stiff resistance in both houses of Congress, establishing a national police misconduct database is a simple and tangible bipartisan solution that will immediately help curb police misconduct in America.
Such an initiative would be relatively easy to implement. According to the Senate’s Justice Act, the database could be handled by the Federal Bureau of Investigation or other Justice Department entities which currently possess the capabilities to “roll out” the initiative. Additionally, compliance would be widely enforceable, as a failure to report to the database could constitute grounds for cutting federal funding to offending jurisdictions. (34)
In summary, a national database provides more accountability while ensuring that offending police officers remain out of law enforcement. This proposal garners vast bipartisan support and has a potential “fast track” to becoming law. In a moment when dysfunctional politics must give way to determined action, the United States Congress should immediately move to implement a robust and mandatory national database for police misconduct.
Notes
1. Stewart, Matt, and Travis Meier. “Jackson County Sheriff Says Law Enforcement Agencies Often Don't Report Misconduct to Database.” FOX 4 Kansas City WDAF-TV | News, Weather, Sports. FOX 4 Kansas City WDAF-TV | News, Weather, Sports, June 12, 2020. https://fox4kc.com/news/jackson-county-sheriff-says-law-enforcement-agencies-often-dont-report-misconduct-to-database/.
2. “Perceptions of Police Accountability and Integrity.” Cato Institute, December 6, 2016. https://www.cato.org/policing-in-america/chapter-3/perceptions-police-accountability-integrity.
3. News, WNYC Data. “Is Police Misconduct a Secret in Your State?” project.wnyc.org. Accessed July 20, 2020. https://project.wnyc.org/disciplinary-records/.
4. Pilcher, James, Aaron Hegarty, Eric Litke, and Mark Nichols. “Fired for a Felony, Again for Perjury. Meet the New Police Chief.” USA Today. Gannett Satellite Information Network, December 17, 2019. https://www.usatoday.com/in-depth/news/investigations/2019/04/24/police-officers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002/.
5. Thomas-DeVeaux, Amelia, Nathaniel Rakich, and Likhitha Butchireddygari. “Why It's So Rare For Police Officers To Face Legal Consequences.” FiveThirtyEight. FiveThirtyEight, June 4, 2020. https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-consequences-for-misconduct/.
6. Stewart, Matt, and Travis Meier. “Jackson County Sheriff Says Law Enforcement Agencies Often Don't Report Misconduct to Database.” FOX 4 Kansas City WDAF-TV | News, Weather, Sports. FOX 4 Kansas City WDAF-TV | News, Weather, Sports, June 12, 2020. https://fox4kc.com/news/jackson-county-sheriff-says-law-enforcement-agencies-often-dont-report-misconduct-to-database/.
7. News, WNYC Data. “Is Police Misconduct a Secret in Your State?” project.wnyc.org. Accessed July 20, 2020. https://project.wnyc.org/disciplinary-records/.
8. Stewart, Matt, and Travis Meier. “Jackson County Sheriff Says Law Enforcement Agencies Often Don't Report Misconduct to Database.” FOX 4 Kansas City WDAF-TV | News, Weather, Sports. FOX 4 Kansas City WDAF-TV | News, Weather, Sports, June 12, 2020. https://fox4kc.com/news/jackson-county-sheriff-says-law-enforcement-agencies-often-dont-report-misconduct-to-database/.
9. Ibid.
10. Johnson, Kevin. “New Registry Will Identify Decertified Police.” McLean : USA Today, Gannet Co. Inc., 2006.
11. Wu, Katherine J. “Study Finds Misconduct Spreads among Police Officers like Contagion.” PBS. Public Broadcasting Service, May 27, 2019. https://www.pbs.org/wgbh/nova/article/police-misconduct-peer-effects/.
12. Pilcher, James, Aaron Hegarty, Eric Litke, and Mark Nichols. “Fired for a Felony, Again for Perjury. Meet the New Police Chief.” USA Today. Gannett Satellite Information Network, December 17, 2019. https://www.usatoday.com/in-depth/news/investigations/2019/04/24/police-officers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002/.
13. Rappaport, Ben Grunwald & John. “The Wandering Officer.” The Yale Law Journal - Home, 2020. https://www.yalelawjournal.org/article/the-wandering-officer#:~:text=abstract.,of%20the%20wandering%2Dofficer%20phenomenon.
14. Ibid.
15. Pilcher, James, Aaron Hegarty, Eric Litke, and Mark Nichols. “Fired for a Felony, Again for Perjury. Meet the New Police Chief.” USA Today. Gannett Satellite Information Network, December 17, 2019. https://www.usatoday.com/in-depth/news/investigations/2019/04/24/police-officers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002/.
16. Cipriano, Andrea. “Rehiring Bad Cops Adds Another Flashpoint to Police Reform Debate.” The Crime Report. Center on Crime and Justice at John Joy College, 2017. https://thecrimereport.org/2020/06/09/rehiring-bad-cops-adds-another-flashpoint-to-police-reform-debate/#:~:text=Of%20those%201881%20officers%2C%20451%20were%20able%20to,same%20communities%20that%20they%20wronged%2C%20the%20Washington%20Postfound.
17. Stewart, Matt, and Travis Meier. “Jackson County Sheriff Says Law Enforcement Agencies Often Don't Report Misconduct to Database.” FOX 4 Kansas City WDAF-TV | News, Weather, Sports. FOX 4 Kansas City WDAF-TV | News, Weather, Sports, June 12, 2020. https://fox4kc.com/news/jackson-county-sheriff-says-law-enforcement-agencies-often-dont-report-misconduct-to-database/.
18. Pilcher, James, Aaron Hegarty, Eric Litke, and Mark Nichols. “Fired for a Felony, Again for Perjury. Meet the New Police Chief.” USA Today. Gannett Satellite Information Network, December 17, 2019. https://www.usatoday.com/in-depth/news/investigations/2019/04/24/police-officers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002/.
19. News, WNYC Data. “Is Police Misconduct a Secret in Your State?” project.wnyc.org. Accessed July 20, 2020. https://project.wnyc.org/disciplinary-records/.
20. “Perceptions of Police Accountability and Integrity.” Cato Institute, December 6, 2016. https://www.cato.org/policing-in-america/chapter-3/perceptions-police-accountability-integrity.
21. Neyfakh, Leon. “The Bad Cop Database: A Radical New Idea for Keeping Tabs on Police Misconduct.” Slate Magazine. Slate, February 13, 2015. https://slate.com/news-and-politics/2015/02/bad-cops-a-new-database-collects-information-about-cop-misconduct-and-provides-it-to-defense-lawyers.html.
22. Reimund, Mary. “Are Brady Lists (aka Liar’s Lists) the Scarlet Letter for Law Enforcement Officers?”. Des Moines: International Journal of Humanities and Social Science, 2013.
23. Neyfakh, Leon. “The Bad Cop Database: A Radical New Idea for Keeping Tabs on Police Misconduct.” Slate Magazine. Slate, February 13, 2015. https://slate.com/news-and-politics/2015/02/bad-cops-a-new-database-collects-information-about-cop-misconduct-and-provides-it-to-defense-lawyers.html.
24. Bergengruen, Vera. “Inside the Long Effort to Create A Use-of-Force Database.” Time. Time, June 30, 2020. https://time.com/5861953/police-reform-use-of-force-database/.
25. Serwer, Adam. “Bad Apples in Buffalo.” MSN, 2020. https://www.msn.com/en-us/news/us/bad-apples-in-buffalo/ar-BB156v5O.
26. Neyfakh, Leon. “The Bad Cop Database: A Radical New Idea for Keeping Tabs on Police Misconduct.” Slate Magazine. Slate, February 13, 2015. https://slate.com/news-and-politics/2015/02/bad-cops-a-new-database-collects-information-about-cop-misconduct-and-provides-it-to-defense-lawyers.html.
27. Bergengruen, Vera. “Inside the Long Effort to Create A Use-of-Force Database.” Time. Time, June 30, 2020. https://time.com/5861953/police-reform-use-of-force-database/.
28. Elinson, Zusha, and Dan Frosch. “Cost of Police-Misconduct Cases Soars in Big U.S. Cities.” The Wall Street Journal. Dow Jones & Company, July 16, 2015. https://www.wsj.com/articles/cost-of-police-misconduct-cases-soars-in-big-u-s-cities-1437013834.
29. Shielded from Justice: Police Brutality and Accountability in the United States. Accessed July 20, 2020. https://www.hrw.org/legacy/reports98/police/index.htm.
30. Thiessen, Marc. “Opinion | Democrats' Shameful Vote against Tim Scott's Police Reform Bill.” The Washington Post. WP Company, June 25, 2020. https://www.washingtonpost.com/opinions/2020/06/25/if-democrats-cared-about-police-reform-they-would-have-advanced-tim-scotts-bill/.
31. Ibid.
32. Tarinelli, Ryan. “Siena College Poll Finds Broad Support for Police Reforms Among NY Voters, But Less for 'Defunding'.” New York Law Journal, June 30, 2020.https://www.law.com/newyorklawjournal/2020/06/30/siena-college-poll-finds-broad-support-for-police-reforms-among-ny-voters-but-less-for-defunding/.
33. Thiessen, Marc. “Opinion | Democrats' Shameful Vote against Tim Scott's Police Reform Bill.” The Washington Post. WP Company, June 25, 2020. https://www.washingtonpost.com/opinions/2020/06/25/if-democrats-cared-about-police-reform-they-would-have-advanced-tim-scotts-bill/.
34. NPR. NPR. Accessed July 20, 2020. https://apps.npr.org/documents/document.html?id=6950175-Senate-Republicans-Justice-Act.
35. Neyfakh, Leon. “The Bad Cop Database: A Radical New Idea for Keeping Tabs on Police Misconduct.” Slate Magazine. Slate, February 13, 2015. https://slate.com/news-and-politics/2015/02/bad-cops-a-new-database-collects-information-about-cop-misconduct-and-provides-it-to-defense-lawyers.html.
36. Gonen, Yoav, Julia Marsh, and Bruce Golding. “NYC Has Shelled out $384M in 5 Years to Settle NYPD Suits.” New York Post. New York Post, September 4, 2018. https://nypost.com/2018/09/04/nyc-has-shelled-out-384m-in-5-years-to-settle-nypd-suits/.
37. Shielded from Justice: Police Brutality and Accountability in the United States. Accessed July 20, 2020. https://www.hrw.org/legacy/reports98/police/index.htm.
38. Gonen, Yoav, Julia Marsh, and Bruce Golding. “NYC Has Shelled out $384M in 5 Years to Settle NYPD Suits.” New York Post. New York Post, September 4, 2018. https://nypost.com/2018/09/04/nyc-has-shelled-out-384m-in-5-years-to-settle-nypd-suits/.
39. Bergengruen, Vera. “Inside the Long Effort to Create A Use-of-Force Database.” Time. Time, June 30, 2020. https://time.com/5861953/police-reform-use-of-force-database/.
40. Ibid.
41. “National Use-of-Force Data Collection Pilot Study Summary.” FBI. FBI, December 11, 2018.https://www.fbi.gov/file-repository/ucr/national-use-of-force-data-collection-pilot-study-121018.pdf/view
42. Egan, Paul. “Nessel Calls for Public Database of Michigan's Problem Police Officers.” Detroit Free Press. Detroit Free Press, June 16, 2020. https://www.freep.com/story/news/local/michigan/detroit/2020/06/16/dana-nessel-public-police-database-michigan/3198986001/.
