As we witness countless instances of brutality by law enforcement officers, police misconduct has now more than ever 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. 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.
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. Despite their efforts, these existing database initiatives have largely failed. National reform is imperative, and it will require the creation of a mandatory, comprehensive public database that will promote transparency and efficiency in police departments.
Failures 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.” This illustrates the lack of widespread participation in existing official 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, while leaving out the circumstances of dismissal and the actual offending behavior perpetuated by the officer who is being terminated. Finally, some databases are not publicly accessible, removing yet another crucial element of accountability.
The implications of these flawed existing databases are troubling. Many officers report that if an incident occurs, they can simply resign and join another department without retribution. This practice has become common enough for officers across the country to have testified to its existence and have assigned it names such as “wandering officers” or “police hopping.” Wandering officers are not uncommon, and they essentially amount to bad cops migrating away from previous posts to new ones, spreading their bad behavior to different forces. A study published in the Yale Law Journal counted over 800 wandering officers in Florida per year who likely interacted with hundreds of thousands of civilians. 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. 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. These disturbing findings are supported by myriad studies, and they underscore the fact that there is very little preventing bad cops from keeping their badges. This culture of ignoring previous misconduct is aided and abetted by a reporting regimen that is neither public, nor exhaustive, nor mandatory.
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.
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. A lack of incentive to report, combined with the resulting lackluster information in databases, 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 is often buried deep within the unruly records of thousands of police departments across the nation. This discourages many agencies 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.
Furthermore, in a sizable share of criminal cases in which the state allied with the police officer has brought charges against an arrestee, defense attorneys face restrictive barriers in their efforts to assess potential prior misconduct by the arresting officer. Many times, their access to the department’s private database and information regarding previous misconduct and settlements is highly restricted. 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 where 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. On the other side of the docket, prosecutors can only reveal exculpatory material — also known as Brady letters — about the arresting officers “at the eleventh hour,” or right before trial is about to begin, at which point there is too little time for defense lawyers to analyze the material and use it in their case. This process not only engenders difficulty in prosecuting potentially unlawful officers, but it perpetuates future misconduct as well.
All of the above considerations expose the fact that a stronger system is needed, beyond what states have shown themselves ready or willing to produce. It is clear that only an act of Congress stipulating mandatory reporting would make all police departments report misconduct — not just the departments with good numbers. Additionally, the database must be federal, because federal databases ensure equal reporting requirements and standards across localities. Disorganized regional or local databases result in harmful information barriers. Finally, any database must be public. Since officers may at times “turn a blind eye” to misconduct for fear of retribution from their peers, Joanna Schwartz, a law professor at The University of California, Los Angeles, asserts that public databases could create pressure on agencies to independently better themselves.
As a result, public databases would also increase trust within communities by adding greater transparency and procedural accountability. When Michigan began reporting their misconduct cases publicly 18 months ago, it “helped build trust between the police and the community.” Given these positive outcomes, 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. The money comes not from the police departments or the officer, but from the city’s own funds, costing taxpayers millions. 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.
In short, it is clear that bad officers present an enormous cost to the budgets and morals of the communities that they serve. The only way to recoup that cost is through a robust system keeping detailed track of police misconduct and using that data to prevent them from continuing to be a problem. Previous attempts to do that have fallen short, demonstrating the need for a mandatory, comprehensive national database that can solve the problem once and for all.
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 proposals include provisions such as placing a ban on the use of chokeholds and similar tactics and establishing an issue commission tasked with carrying out a comprehensive report on the policing in the U.S.
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 and Republican legislators in their Justice Act. A better national database is the rare measure that enjoys such broad bipartisan support. 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.
Other reforms, such as ending qualified immunity, have been called “nonstarters” by the White House. On the other hand, the Democrats have decried the GOP bill. While it is evident that both parties have substantial differences in their outlooks 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.
The Way Forward
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 FBI 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.
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.
Photo by Sean Lee is licensed under the Unsplash License.