Can Policing Really Change? Ten Lessons From the DOJ’s ‘Pattern or Practice’ Bias Probes

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The first consent decree ordered under the  Justice Department “pattern or practice” program to investigate local police departments for violations of constitutional rights was signed 20 years ago.  There’ve been 30 settlements with departments since that first Pittsburgh agreement in 1997.

It’s therefore an appropriate time to assess the program’s  impact. What has it achieved? Has it effectively reduced police misconduct?

Has it been cost-effective?

Samuel Walker

Here are 10 quick lessons I’ve drawn from my own research as well as from the 20-year report published by the Civil Rights Division of the Department of Justice in January.

1.Consent Decrees Represent an Historic Attempt to Identify Roots of Police Misconduct

The pattern-and-practice program has been an unprecedented event in American police history. Never before has the Justice Department undertaken such an intense scrutiny of local departments for the purpose of ending systemic abuses, and reducing—if not eliminating—racial and ethnic disparities. Because of the Civil Rights Division’s broad investigatory powers, it has been able to identify the underlying causes of police misconduct. The investigation into Ferguson, Missouri, for example uncovered the shocking evidence that the city pressured the police department to generate revenue government operations.

2.They’ve Been (Generally) Successful

Evaluations of several departments have found that consent decrees have generally  been successful in achieving their goals. A Harvard evaluation of the consent decree involving the Los Angeles Police Department (LAPD)found the LAPD “much changed,” and “quality and the quantity of [law] enforcement activity have risen substantially” because of the consent decree. Evaluations of the LAPD by racial and ethnic minorities had improved. That is quite an achievement for a department with a long history of racial controversy. True, there has been backsliding in some departments, but in no case has a DOJ settlement completely failed.

3.But Are They Sustainable?

Serious questions remain about whether court-ordered reforms are sustained over the long-term. In Pittsburgh, for example, a new mayor with close ties to the police union promptly fired the reform-minded chief, and police practices began reverting to their own ways. The sustainable issue is extremely important, and cannot be ignored. If the reforms cannot be sustained, then the whole effort has not been worth it. The evidence, I think, points to a guardedly optimistic view: cases of documented success and no cases of complete failure.

4.The Organization is the Problem

The DOJ program consolidated the view, already developing among police experts, that establishing professional and constitutional policing requires systemic organizational reform. The report on the Albuquerque police department found that “the use of excessive force by APD officers is not isolated or sporadic. [It] stems from systemic deficiencies in oversight, training, and policy.” All the reports on other departments reached the same conclusion. In short, officer misconduct is not the result of the proverbial “bad apples” but of systemic poor management.

5.Identifying Best Practices is Critical

To achieve systemic organizational reform, the DOJ program has defined a specific set of “best practices.” These include: state of the art polices on officer use of force, including strict force reporting and review requirements; an early intervention system (EIS) to track officer performance and identify officers with persistent performance problems; and an open and accessible citizen complaint procedure. Prior to the DOJ program, there was no equivalent list of accountability-related best practices in policing.

6.Accountability Begins at the Supervisor Level

The DOJ program has illuminated the appalling details of on-the-street officer misconduct. In Seattle, for example, DOJ found “multiple cases in which SPD officers failed to report the use of force at all.” In Cleveland “officers use their guns to strike people in the head in circumstances where the use of deadly force is not justified.” Cleveland officers also “commit tactical errors that endanger themselves and other members of the community and may result in the use of excessive force.” Accountability collapses because supervisors “make little effort to determine the level of force that was used and whether it was justified. In some cases, supervisors take steps to justify a use of force that, on its face, was unreasonable.”

7.Police “Culture” Needs Re-thinking

The program has provided new insights into the much-discussed “police culture.” It is not the result of the recruitment of unqualified individuals. The department ignores and tolerates inappropriate attitudes and behavior. In Albuquerque, the DOJ report found that “The department’s lack of internal oversight has allowed a culture of aggression to develop. This culture is manifested in the routine nature of excessive force and lack of corrective actions taken by the leadership . . . the department’s training, permissive policy on weapons, . . . and the harsh approaches to ordinary encounters with residents.”

8.Consent Decrees Can Pay for Themselves

Criticisms about the financial cost of consent decrees have raised questions about the true “costs” of both police misconduct and police reform. The direct financial costs of a consent decree involve procedures and equipment that a department should have adopted years before. In Cleveland, for example, “basic equipment is either outdated or nonexistent.” For example, “Not all of CDP’s zone cars have computers and, of those that do, the computers do not all reliably work.” The costs of providing modern, up-to-date equipment should not  be blamed on the consent decree.

Additionally, many cities have been paying out enormous funds in civil litigation over police misconduct. Chicago paid out $50 million in 2014 alone. Consent decree-related reforms have succeeded in reducing misconduct and payouts from civil litigation, which represent a long-term cost saving. A full, long-term accounting may well find that consent decrees reduce the costs of policing over time.

Finally, a full accounting also needs to take into account the human and social costs that reforms in most departments have reduced.

9.Tracking Policing Reforms is Essential

The DOJ program has illuminated the enormous challenge of evaluating systemic organizational reform in police departments. Policing involves many important issues: officer uses of force; the treatment of racial and ethnic minorities; disciplinary procedures; citizen complaints and public perceptions of the department, among others. Tracking changes in all of them is a daunting challenge, and police researches need to develop comprehensive and manageable evaluation models.

10. This is (or Should Be) Just the Beginning

Finally, the history of the program highlights the impact of politics and police reform. Two Democratic Party presidents (Bill Clinton and Barak Obama) aggressively pursued the pattern or practice program, while one Republican Party president (George W. Bush) backed away from it, and the new Republican Party president appears hostile to it.

In the end, even allowing for some backsliding, the DOJ pattern or practice program has achieved significant reforms in departments subject to consent decrees.

Most important, the program has made a significant contribution to policing by defining a set of “best practices” necessary for constitutional and bias-free policing. Serious questions remain, however, about how to transform large public bureaucracies and about the long-term sustainability of court-ordered reforms.

These and other questions raised by the DOJ’s program demand further investigation by police experts.

NOTE: A more comprehensive version of Prof. Walker’s analysis can be downloaded here.

 Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha, and the author of 14 books on policing, civil liberties and crime police. His new blog can be read here.  Readers’ comments are welcome.

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