Revisiting Who Is Guarding the Guardians?
For almost 20 years, the U.S. Commission on Civil Rights has been at the forefront of the police practices debate. Through its seminal report titled Who Is Guarding the Guardians? and numerous subsequent reports, the Commission has made important recommendations to improve the quality of police protection while ensuring the protection of civil rights for all Americans. The Commission has consistently endeavored to underscore these connected goals.
Law enforcement work is undeniably difficult. Officers must constantly be aware of the pressures to reduce crime and make arrests, while balancing concerns about officer safety and the constant stress of making split-second decisions that could mean the difference between life or death. The Commission applauds the efforts of many law enforcement agencies to improve themselves by increasing diversity among the ranks of officers, developing new training methods on the use of force, and bolstering their internal affairs divisions. Many police departments have also worked to strengthen their relationships with communities of color and have updated their policies in order to adequately respond to the needs of an ever-changing constituency. Some police departments have drastically reduced crime and fundamentally changed the communities in which they serve. Indeed, the Commission found that cities like New York City and Los Angeles, for example, have made great strides in lowering crime rates. These departments have not developed into “world-class” forces, however, due to lingering concerns over the number and types of police misconduct charges they must address.
Regrettably, their crime reduction achievements often have come at a significant cost to the vulnerable communities in greatest need of police protection. Reports of alleged police brutality, harassment, and misconduct continue to spread throughout the country. People of color, women, and the poor are groups of Americans that seem to bear the brunt of the abuse, which compounds the other injustices that they may suffer as a result of discrimination against their racial, ethnic, gender, or economic status. In their eagerness to achieve important goals such as lowering crime, some police officers overstep their authority, trample on individuals’ civil rights, and may cause entire communities to fear the same people they hired and trusted to protect them.
Based on the Commission’s research, the problem of police misconduct has affected every facet of police culture and policies. Perpetrators can come from any race, ethnicity, or gender, but all police officers are essentially trained by the same law enforcement methods that fail to adequately address cultural diversity and civil rights. Moreover, although law enforcement agencies may significantly reduce crime and the number of police shootings, these improvements come at a terrible price. Incidents of police officers committing crimes, engaging in racial profiling, and harassing individuals continue to make the headlines.
The Commission has a long history of examining the police in their administration of justice and has made numerous recommendations to improve law enforcement as a whole. Many of the Commission’s recommendations have been implemented and have positively affected those communities. Despite this fact, reports of abuse and misconduct seem to be incessant, and they typically prompt a complex series of responses: community leaders cry out for change; law enforcement agencies assert that they are doing their job; federal investigators evaluate rogue police officers and entire departments; politicians debate about policies that purport to be tough on crime, yet strong on civil rights. What emerges from these opposing accounts is the need for a reasoned, systematic approach to honestly and sufficiently address police misconduct, once and for all.
By supplementing Guardians and its other related reports, the Commission hopes that this publication will move the apparent conflict between law enforcement and civil rights objectives toward a meaningful resolution. Through its findings and recommendations, the Commission presents a comprehensive set of guidelines and objectives to remedy police misconduct, which law enforcement agencies, both federal and state, should fully implement.
Some of the Commission’s key findings and recommendations have been previously made in other reports. For example, the Commission reiterates the need to increase diversity in all law enforcement agencies—from the officer patrolling the street to the precinct captain. There is also a continuing need to implement successful models of community policing and to improve police officer training so that it will encompass cultural sensitivity issues and the proper use of force.
In addition, the Commission makes findings and recommendations on the issue of racial profiling that need to be given the highest priority in order to confront this pressing contemporary problem. It has been established that racial profiling exists in many areas of law enforcement. However, profound differences exist between the perceptions of the police and the public, particularly with regard to people of color. People of color and other civilians often conclude that law enforcement officers disproportionately target their communities because of misperceptions about their racial and ethnic backgrounds, rather than crime patterns or citizen complaints. In contrast, many law enforcement officers view race and ethnicity as appropriate elements of proper police investigations. Despite efforts to monitor racial profiling, some police officers and officials resist collecting statistics on alleged suspects’ race or ethnicity. It is clear that modified policing techniques, based on facts rather than myths about communities of color, would begin to remedy many of the current problems surrounding this issue. The collection of racial profiling data is needed to examine the extent of its use, to enact legislation to prosecute those who utilize it, and to realize the total elimination of this practice in law enforcement.
Recruitment, Selection, Promotion, and Retention
Law enforcement personnel generally do not reflect the communities they serve. There continues to be a serious underutilization of people of color and women, as well as bilingual officers. Although police forces have tried to implement affirmative action policies, they have been unable to accomplish or sustain diversity. Several reasons account for this problem. Recruitment efforts do not specifically target women and people of color. Despite attempts to attract members of these groups, many people of color and women continue to have negative perceptions of law enforcement.
Within law enforcement agencies, claims of sexual and racial harassment, disparity in pay, and low job satisfaction make police careers unattractive. Additionally, the selection process for police officers often contains biases that, in effect, eliminate candidates of color and noncitizen permanent residents. The Commission recommends, among other things, that law enforcement agencies:
Develop creative strategies to increase diversity at all levels.
Improve public perception of the police to attract more applicants.
Encourage recruits to have college degrees.
Eliminate biases in the selection system.
Revise recruitment and selection methods.
The Commission finds that the promotion and reward systems of many law enforcement agencies are seriously flawed. The emphasis on certain questionable crime reduction strategies may negatively affect civil rights by encouraging officers to engage in unlawful practices in the hopes of gaining a promotion. Indeed, racial profiling may be encouraged by this reward system because communities of color are frequently targeted as “high-crime areas.” To remedy this situation, law enforcement agencies should:
Re-evaluate their retention and promotion processes, recognizing that a system of rewards that promotes crime prevention over the protection of civil rights should be replaced with one that incorporates and reinforces the two concerns.
Seek ways to improve the promotion rate for officers of color.
Good basic training on diversity issues, especially at the earliest stages of law enforcement careers, would significantly improve the overall effectiveness of officers. In contrast, inadequate training usually reveals itself during the most precarious circumstances: when officers are responding to a volatile crime scene or in the process of making an arrest, and are called upon to make instantaneous, life-altering decisions.
Effective training must incorporate contemporary issues such as cultural sensitivity, use of force, racial profiling, and community policing into basic crime prevention methods.
Members of the community should be involved in the training process, so that divergent views and perspectives might be represented.
Consent decrees with the federal government may also be used to force recalcitrant police departments to comply with federal mandates to improve their training practices.
Internal Regulation of Law Enforcement Agencies
Law enforcement agencies should police themselves primarily because they possess the tools to internally change policies and practices. The Commission finds problems, however, with the internal regulation of the use of deadly force, racial profiling, as well as misconduct investigations and dispositions.
Presumably, all police departments seek to reduce the unnecessary use of deadly force. But different jurisdictions have varying interpretations of the legitimate use of deadly force and the legal standards of reasonable behavior. Civilian deaths caused by police error continue to mount, and it is increasingly evident that officers need clear guidance from their chiefs of police and immediate supervisors on the use of excessive force, as well as internal misconduct policies and disciplinary procedures related to that behavior.
Police officials should construct a uniform policy on the use of deadly force.
Intensive training should be provided on a continuing basis to guide officers’ discretion.
Internal affairs divisions, charged with investigating allegations of police misconduct and resolving complaints, increasingly lose credibility and effectiveness when they are accused of unequally disciplining the same types of offenses, taking too long to investigate complaints, being unable to break through the code of silence among police officers, failing to keep the public apprised of complaint dispositions, and lacking computerized data systems to track needed information on misconduct incidents.
Police administrators and IAD officials should routinely examine their disciplinary procedures in order to improve the overall effectiveness of internal affairs divisions.
City officials continue to hold the most influence over how external review procedures are conducted. They guide the overall attitude of their officers regarding police misconduct issues.
Officials at every level of city government should make a concerted effort to eliminate all forms of police misconduct.
Complete cooperation among government entities and police representatives is necessary to ensure the success of any policy or program designed to address police misconduct.
Officials should encourage the development of external oversight devices such as civilian review boards, independent auditors, and solicitors general.
The use of federal monitors to oversee police misconduct issues should be enhanced, especially in light of the federal civil rights statutes that are in place to address these issues.
Local law enforcement agencies should be encouraged to cooperate with the efforts of federal monitors.
State prosecution of police misconduct cases is not effective primarily because district or county attorneys rely heavily upon the support and cooperation of police departments.
The appointment of an independent or special prosecutor assigned solely to police misconduct cases would increase the frequency and quality of those investigations and prosecutions.
Civilian review boards continue to play an important role in the external oversight of police misconduct; however, most boards have little or no investigative or disciplinary powers.
Subpoena power must be granted to all civilian review boards.
Civilian review boards should be endowed with disciplinary authority over investigations of police abuse incidents.
Remedies and Legal Developments
The passage of the Violent Crime Control and Law Enforcement Act, which authorizes the Attorney General to bring civil actions against state and local law enforcement agencies that have engaged in a pattern or practice of constitutional rights violations, has been an important development since the publication of Guardians. However, the Justice Department has not been adequately funded to realize the full authority provided under the act. Moreover, the act fails to provide for a private right of action by individuals injured by police misconduct.
Resources must be allocated to fund federal investigations into systemic police misconduct.
Individuals should be afforded legal standing to sue for equitable and injunctive relief against police departments engaging in misconduct.
Criminal remedies should be pursued in every police misconduct case when there is sufficient evidence to support the charges. Through vigorous criminal prosecution of accused police officers, the federal government can work to remedy the problem of police misconduct. Aggressive federal government tactics could also have a profound effect on the deterrence of further police abuses. But federal prosecution of police officers has been impeded by the provision of 18 U.S.C. § 242, which requires that an allegation of official misconduct be supported by evidence showing that the accused officer acted with a “specific intent” to violate the person’s civil rights. In light of the hindrance that this restrictive standard imposes on federal prosecutions,
Congress should amend § 242 to remove the “specific intent” requirement.
Federal racketeering laws may serve as alternative methods to pursue criminal charges against offending officers.
The Justice Department should be properly funded to collect statistics regarding racial profiling.
The Traffic Stops Statistics Study Act of 1999 should be enacted to further the efforts of that data collection.
Police misconduct has a deleterious effect on virtually every aspect of our society. Most importantly, police brutality tears violently at the fabric of our nation, leaving in its aftermath a distrustful and divided community. To improve the effectiveness of our police departments and to decrease tensions between the police and the public, we must find innovative methods to combat police misconduct in all its destructive forms. The Commission hopes that through the collective efforts of the police, the public, and our government, we will someday experience a strengthened bond and a mutual respect between the police and the communities they serve.