Police officers’ appeals against disciplinary actions should be put into the hands of more “democratically accountable” actors, like city councils, mayors, city managers, or civilian review boards, says a forthcoming paper in the University of Pennsylvania Law Review.
The paper, which examined police union contracts across the US, concludes that the “significant authority” granted to many unions to select the arbitrators in appeal procedures has left police managers, public officials and civilian oversight committees with little more than symbolic power to discipline officers for misconduct.
The paper’s author, Stephen Rushin, an assistant professor at Loyola University, Chicago School of Law, created a data-set of union contracts negotiated between 2014 and 2017 in 656 municipal police departments, chosen to represent a geographically and demographically diverse cross-section of US police departments.
He found that 74 percent of the police departments he studied have an appeals process that uses some kind of outside arbitration review, including Austin, Boston, Chicago, Cincinnati, Cleveland, Columbus, Miami, and Omaha.
And in over half of those departments, police unions have “significant authority” in the selection of arbitrators. In cities such as Boston, Chicago, Detroit, and Fort Worth, the identity of arbitrators is negotiated during collective bargaining, and then written into police union contracts.
Rushin suggested the frequency of these selection procedures may give arbitrators an incentive to reduce sanctions on appeal for the sake of popularity. Additionally, the private nature of the negotiations can result in tit-for-tat exchanges of disciplinary concessions in return for lower salaries or other trade-offs.
Some 70 percent of the municipalities he studied give arbitrators the power not only to appeal disciplinary actions, but to re-litigate them entirely, “with little or no deference to decisions made by police supervisors, city officials, or civilian review boards,” Rushin writes.
“This stands in stark contrast to the limited role of appeals in the American criminal and civil justice system.”
Finally, in over 68 percent of the departments, an arbitrator’s findings are final and binding. Rushin argues that another alternative to curbing union influence in the disciplinary process may be to ensure that arbitrators have an “advisory” rather than a binding role.
“While each of these appellate procedures may be individually defensible, they may combine in a large number of police departments to create a formidable barrier to democratic police accountability,” writes Rushin.
Because of this, the power of even the most robust civilian review boards, such as the Detroit Police Commission, may be largely symbolic.
Last year brought a flood of media reports about officers evading disciplinary actions. A Washington Post investigation in 2017 found that since 2006, police departments in big cities were forced to reinstate 450 out of 1,881 officers who had been fired for misconduct.
A separate analysis by ProPublica and Chicago Tribune reporters found that, between 2010 and 2017, Chicago had reduced or reversed sanctions against 85 percent of all police officers during the grievance appeals process.
As a result of the difficulty in making disciplinary actions stick, many departments resort to keeping a confidential list of officers with serious complaints on their records, Rushin noted. He cited the example of Philadelphia, where 26 officers accused of lying, racial bias or brutality were identified on a secret “Brady List” by prosecutors to ensure they would not be called to testify.
The full paper can be downloaded here.
This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.