The killing of George Floyd, a Black man, by four Minneapolis Police Department officers has raised the consciousness of the United States on the issue of police violence. Yet there is still a failure by many to recognize the systemic nature of the problem and the racism that permeates the structures of policing and the criminal justice system. Those minimizing or ignoring the serious foundational issues plaguing American policing often use the term “bad apples” to cabin off police brutality and misconduct to a theoretical handful of officers. For example, in his comments about the George Floyd protests, President Donald Trump’s National Security Adviser Robert O’Brien flatly denied that there is systemic racism and claimed that “a few bad apples” were giving law enforcement a bad name.
This myopic analysis is one of the core reasons why police reform in the United States is so difficult. However, it is a view that is not only characteristic of those who reject the systemic nature of the problem; even those who recognize that reforms must focus on entire police departments and policing as a whole can diminish the scope of the problem and limit the options for reform to individual strategies. Yet when those individual strategies, such as trainings on a particular topic, fail to curb excessive uses of force, police reform is declared a failure and the strategies are dismissed as ineffective.
The fatal flaw in many jurisdictions’ approach to police reform, therefore, is not necessarily which strategies they choose to pursue, but rather their choice to pursue individual strategies in the first place. In other words, police reform cannot take root through a menu-of-options approach where a handful of changes are adopted but other, more fundamental reforms are left out. And reform will be impossible if the discarded piece is meaningful accountability for officers and police departments.
Training and policy changes are inefficient
Since 2015, the Minneapolis Police Department has been engaged in a number of police reform efforts. It was even considered to be a leader in training programs intended to reduce implicit bias and promote procedural justice—a concept focused on the fairness of the process by which officers interact with members of the community. Every member of the Minneapolis Police Department was required to attend those trainings. The department, in conjunction with local and outside experts and with support from the U.S. Department of Justice (DOJ), also enacted substantive policy changes such as the inclusion of de-escalation policies and the duty to intervene when other officers engage in misconduct. Yet these trainings and policies failed to prevent the killing of George Floyd in broad daylight in front of multiple bystanders, and they did not sufficiently build trust and legitimacy with the community. As a result, the Minneapolis city council announced this week that it would disband the police department and start over with a community-based public safety model.
Many of the Minneapolis Police Department’s reform strategies emerged in the wake of the high-profile police killings of Michael Brown in Ferguson, Missouri; Eric Garner in New York City; and Tamir Rice in Cleveland, among others. Federal, state, and local governments began to invest in trainings as well as measures requiring officers to use body-worn cameras that record police actions, restricting the use of military equipment by police departments, and expanding civilian oversight of police actions through review boards. These strategies were based on research and had significant support from a range of experts, community leaders, and police organizations.
Notably, training and policy changes were never designed to be the totality of police reforms. The final report of President Barack Obama’s Task Force on 21st Century Policing, for example, devoted one of its six pillars of recommendations to training and education. The other five focused on building trust and legitimacy, policy and oversight, technology and social media, community policing and crime reduction, and officer wellness and safety. Similarly, Campaign Zero, a research and advocacy organization led by national policing experts, has led a police reform campaign for the past five years with a platform that includes training but also emphasizes nine other fundamental reforms, including independent investigations and prosecutions of police violence, limits to uses of force, and fair union contracts.
Although they have come under scrutiny, proper training and policy changes are indeed crucial to reforming policing and should not be discarded as unproven strategies. They provide instruction to police officers on their roles and responsibilities, how they should conduct themselves in different scenarios, and, ideally, the limits of their authority. However, a department’s policies and trainings are also the basis upon which the reasonableness of an officer’s conduct—and therefore its legality and appropriateness—will be determined in a disciplinary action or a criminal prosecution for excessive use of force or other misconduct. If the policy or training associated with the officer’s conduct is too vague or permissive, even “good cops” can act like bad apples. Thus, training and policy changes are essential components of an interconnected system of accountability.
How to hold police departments accountable
Investments in training and policy changes are rendered meaningless if police departments repeatedly fail to hold officers accountable, resulting in a loss of confidence in the police by the those most impacted by police violence. A national poll conducted in the midst of the protests showed that 63 percent of total respondents still had a “great deal” or “fair amount” of confidence in the police. Among African American respondents, however, only 31 percent held the same view, while 48 percent said that they had “very little/no confidence at all” in the police.
Yet holding officers accountable is perhaps the most difficult aspect of police reform to implement due to opposition from police unions and traditional “law and order” advocates who have successfully campaigned for statutory barriers to accountability. It is now incumbent on legislators to enact laws that reverse this trend. They must exhibit political will and resist calls to pass only a limited set of reforms or bills that consist merely of more studies, task forces, and grants that incentivize instead of compel police departments to change. Police reform legislation without measures that substantially strengthen the ability of oversight bodies, prosecutors, and the justice system to hold officers and police departments accountable will only result in slight improvements to the status quo, when transformation is required. Below are four examples of legislative priorities that lawmakers must include in any police reform bill:
- Amend criminal statutes governing excessive uses of force to hold police officers accountable for reckless behavior: Currently, at the federal level, prosecutions for excessive use of force must prove beyond a reasonable doubt not only that an officer’s actions were unreasonable from the point of view of the officer at the time of the incident, but also that the officer acted with a specific intent to violate the law. The law should also hold officers accountable in cases where their actions caused a “substantial and unjustifiable risk” and they consciously disregarded that risk.
- Provide police no greater due process than civilians suspected and accused of criminal acts: In recent years, police unions have lobbied for provisions in legislation and union contracts—often called a “police bill of rights”—that provide them with significantly more protections than the general public when suspected of criminal conduct. Provisions include “cooling off” periods where officers cannot be questioned by investigators for several days, limitations on the number of people who can question officers, and time limits on length of interrogations. These rules do not generally apply to criminal investigators, but because most misconduct is not immediately known to the public or outside agencies, the police departments’ internal procedures, including police bills of rights, are often the first to be initiated.
- Empower state and federal agencies to investigate patterns and practices of misconduct through new authorities and cross-designation: One mechanism that has demonstrated success in ensuring that accountability is at the center of police reform is consent decrees, or court-enforced settlement agreements between police departments and government agencies that investigate them for patterns and practices of unconstitutional policing. The Civil Rights Division at the U.S. Department of Justice is the primary government agency that pursues this type of litigation against police departments, but the current DOJ has put in place significant procedural barriers to securing consent decrees.
The Center for American Progress has previously called on states to pass statutes to empower their own attorneys general to investigate police departments for patterns and practices of unconstitutional policing. Congress can also empower the DOJ to cross-designate state attorneys general as federal litigators. This is done frequently in the criminal context, as state prosecutors are often brought on board as special assistant U.S. attorneys. Should the department choose once again to prioritize this issue, cross-designation would significantly increase the capacity of federal investigations.
- End qualified immunity protection for law enforcement officers: The Civil Rights Act of 1871 gave ordinary people the right to sue police officers and other government officials for violating their constitutional rights. But in 1967, the Supreme Court invented an immunity for government officials. Plaintiffs must now prove that a right was clearly established by showing that the incident in question involved the “same context” and “particular conduct” as a case already decided. Courts have been very stringent when comparing these circumstances, thereby making it virtually impossible for plaintiffs to prevail against police officers. The Supreme Court is set to decide whether it will reexamine qualified immunity in the near future, but Congress can affirmatively pass legislation that denies this legal doctrine as an immunity or defense for government violations of constitutional rights.
As Minneapolis and the country grapple with the continuing history of police brutality, significant and legitimate questions have emerged about the efficacy of police reform strategies. Any effort that only focuses on bad apples, or takes a menu-of-options approach that diminishes stringent accountability structures, is a recipe for failure. Lawmakers must model this approach and pass laws that bring about meaningful accountability for police departments across the country.
Ed Chung is the vice president for Criminal Justice Reform at the Center for American Progress.