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Blog Post | May 20, 2021

What Biden & Garland’s DOJ Must Do to Monitor & Curb Police Misconduct

Criminal JusticeDepartment of Justice
What Biden & Garland’s DOJ Must Do to Monitor & Curb Police Misconduct

Policing, anti-black, anti-immigrant, ableist, and capitalist at its core, was designed to be outside of the scope of the law. The deployment of federal law enforcement officers in unmarked vans to abduct and detain Black Lives Matter protestors in Portland, Oregan during last summer’s national uprising over police killings demonstrates the extreme nature of rogue American policing. Police prerogative power, as the expression of the state’s legalized violence to enforce public docility at its will, is embedded in US governance. Couple that with qualified immunity, police contracts & unions, police bill of rights, and whatnot, law enforcement are shielded from disciplinary actions. The aforementioned protections work in conjunction with one another to: 

Police oversight is often imagined via passing new legislation; however, there would be transformative implications with respect to holding law enforcement accountable if the DOJ were to wield the resources and power stored within its Office of Justice Programs.

Police misconduct is widespread. Current statistics put the death toll at just above 1,000 civilians killed by law enforcement per year. Or in other words, 3 killed civilians a day. This rate is increasing each year, and the horror is underscored by contrast with England & Wales, who totalled 55 civilian fatalities by police misconduct over the span of 24 years (1990 to 2014). Or consider Germany, which experienced a total of 15 civilian fatalities between 2010 and 2011. The same is true of many other wealthy nations. To conceptualize quite how ubiquitous fatal police brutality is, there were only 27 days in 2019 whereby no civilian deaths by police were reported.

Statistics and reports on police brutality & misconduct in the United States stem from crowdsourcing or by pulling together information from a multiplicity of organizational databases “as well as original research focused on social media, obituaries, criminal records databases, police reports and other sources.” That hodgepodge of sources demonstrates the lack of systematic data collection on police misconduct by the government. In fact, a common theme across the academic research realm, media outlets, and even government representatives is the “need for better data on the use of force by the police in the United States,” “the data are still limited,” “most agencies do not collect that data in a systematic way,” “[we’re left] without ample evidence to support new policies,” “scientists must often think creatively to work around the limitations in the data,” “it remains unclear which law-enforcement practices are actually best, largely because of a lack of data and science.” This insufficiency in data tends to segue to widespread lack of accountability for police abuse. 

Holding police accountable through prosecution can be substantially more successful via a consistent & reliable archive of police misconduct cases accessible nation-wide in a federal database. Local bodies with ground level knowledge would procure the misconduct data and update the federal database on a quarterly basis. Quarterly updates are not to be mistaken as a statute of limitations for reporting misconduct cases; the date of the misconduct incident is independent of the date the incident is unearthed. The archive would include police misconduct cases outlining the details of the encounter and any available form of evidence — though the lack of evidence should not serve as a reason to not record the incident.

The system of oversight running now is the exact opposite: inconsistent, unreliable, and unstructured with scattered locations. Namely, there is no solidified figure for checking police abuse; at times this figure takes the shape of an Internal Affairs (IA) Unit and at others, as an Internal Investigations Division, Professional Standards, Inspectorate General, Office of Professional Responsibility, Internal Review Board, CItizens Review/Oversight Board, and a host of other parallel bodies. 

Black Lives Matter have leveraged their collective influence as a social movement to compelled authorities to respond to the lack of accountability for widespread police misconduct with reform. The Biden Plan for criminal justice policy and other demands for oversight may give the impression that legislative solutions are the only way to combat police violence. But what if the powers to track, document, and investigate police misconduct already existed within the DOJ?

The 1994 Violent Crime Control & Law Enforcement Act, notoriously known for birthing the tough-on-crime era, contains an overlooked statute endowing the Attorney General with the power to investigate unconstitutional law enforcement patterns or practices and file litigation if fit while mandating the collection of diverse national statistics pertaining to police violence. It’s worthwhile to note that while the latter is obligatory, the former is a right that the administration & Attorney General can choose whether to act upon or not. For instance, the Obama administration was the first to embrace the statute and successfully investigate 25 police departments; however, investigating 25 police departments over the span of 8 years is merely a start of the oversight needed. Ironically, Biden and other War on Crime enablers have persistently apologized for the law without ever taking full advantage of the law’s only fruitful element. 

Current state and local oversight bodies have major limitations. For one, IA (as other bodies function in a similar fashion) is only present in larger departments, and are generally funded and sustained by the crumbs of the police budget. Even worse are the great majority of police departments which are too small to have a dedicated IA unit. In said departments, the task of overseeing misconduct falls to the chief officer, the supervisor of the officer being investigated, or a neighboring police department. All these mechanisms are problematic and limiting to say the least, as they are a form of self-governance. As many have pointed out, IA operations cannot be trusted stemming from the deference they show to their peers (i.e. other officers on the force). 

Hence the adoption of Citizens Review/Oversight Boards. However, the current state of Citizens Review/Oversight Boards appears like IA simply by another name as they are subject to the same barriers. IA and Citizen Review/Oversight Boards alike rely heavily on the voluntary cooperation of law enforcement, which leaves them almost entirely incapacitated without said cooperation. Since most police departments do not cooperate, not to mention actively impede by concealing or destroying documents, the data IA and present-day Citizens Review/Oversight Boards gather not only lacks credibility but is largely incomplete.

To add insult to injury, both parties must conduct their work in accordance with the rigid confines of doctrines for police protections, such as Police Bill of Rights, police unions & contracts, qualified immunity, etc. Not to mention that the notion of IA and the likes of it are too distinct from department to department.

So taken holistically, contemporary systems of government sponsored police oversight are not constructive nor of service to the cause & purpose of accountability they’re meant to provide — the data they collect is not helpful to use when investigating police misconduct.

3 Ways the Executive Branch Can Monitor Police Misconduct

1) Relaunching the Arrest-Related Deaths Program (ARD), 

Relaunching the ARD program will track the most extreme consequence of police misconduct: death. With Black and Brown adults & children increasingly being mercilessly murdered en masse at the hands of law enforcement, this proposal could not be more relevant and urgent.

2) Amending grant conditions awarded from the Community Oriented Policing Services (C.O.P.S.) Office

C.O.P.S.’ self-proclaimed mission is to foster community policing principles in “state, local, territorial, and tribal law enforcement agencies through information and grant resources.” Recognizing that a significant portion of police departmental budgets stem from grants awarded by C.O.P.S., DOJ should make these grants conditional upon the establishment of a separate, third-party Citizens Oversight Board who is tasked with the citizen complaints process (formerly under the supervision of police departments themselves) accompanied by making the complaint forms 100% accessible to the public. This forces the hand of police transparency because gathering data on police misconduct is no longer contingent on police cooperation, voluntary or not. 

3) Housing non-fatal police misconduct data within the Contacts Between Police and the Public Series

The ARD program must be coupled with tracking less severe forms of police misconduct as a statistical resource for bringing justice cannot be reserved only for instances of fatal police brutality. Abuse of prerogative police power is infinitely more expansive than that — invasive (sexual) touching, threatening, shouting ethnic slurs, tightening handcuffs to obstruct blood circulation, and denying relief to victims of tear gas are just a few examples. Hence rather than outlining what is and what is not considered police misconduct, leaving the data (primarily deriving from the citizen complaint forms submitted to the Citizen Oversight Boards) open-ended allows patterns to rise for themselves. In other words, the public gets to decide when harm has been done by officers rather than vice versa. 

The Bureau of Justice Statistics (BJS) runs both the Contacts Between Police and the Public Series and the ARD program, amid the collection of other justice-related statistics. Precisely because BJS, and C.O.P.S. alike, are operated through the Office of Justice Programs, they are practical proposals for the DOJ to enact today in order to establish databases where patterns of misconduct pertaining to individual officers or police departments at large can be easily identified for the Attorney General to successfully investigate. Each of these proposals track police misconduct distinctly. 

Consecutive articles in this Police Accountability series will dive deeper into each proposal — discussing their inner-workings and the extent of pre-existing potential each proposal contains for police oversight without the need for new legislation.

Header image: “DC Vigil For Delegation of Grieving Mothers 29” by Stephen D. Melkisethian is licensed under CC BY 2.0

Criminal JusticeDepartment of Justice

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