Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism

Hate crimes continue to persist in the United States and undermine the traditions and values to which the country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the HCPA ). The HCPA significantly expands the federal government\u27s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many such crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, or national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim\u27s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward overfederalization of the criminal law. This Article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government\u27s authority to prosecute such crimes. Instead, this Article refocuses the debate to address new issues regarding the federal government\u27s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this Article proposes a model of prosecution that ensures the federal government\u27s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this Article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, inter alia, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This Article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States

New Governance and the New Paradigm of Police Accountability: A Democratic Approach to Police Reform

This Article proposes that policymakers should draw from the emerging New Governance theoretical framework--particularly democratic experimentalism--in order to develop strategies to successfully reform law-enforcement agencies. Modem police departments function like administrative agencies, and as such, they are susceptible to the same deficiencies that traditional agencies experience in other administrative contexts. Given the traditionally insular nature of law-enforcement agencies, the need for political legitimacy in the reform process is amplified in the policing context. Therefore, in order to eliminate patterns of police misconduct and corruption, reform measures should embody characteristics that promote stakeholder participation and local experimentation. This abstract has been adapted from the author\u27s introduction

Future of the Fourth Amendment: The Problem with Privacy, Poverty and Policing

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a search has occurred within the meaning of the Fourth Amendment. The Supreme Court\u27s recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine\u27s importance when determining whether there has been a search triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine\u27s bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence. This Article argues that while Jones has reiterated that a physical trespass may trigger Fourth Amendment protection, this holding alone will not result in any appreciable strengthening of the privacy rights of the urban poor. The manner in which urban, inner-city communities are over-policed and the aggressive law enforcement strategies employed in these areas, along with the current constitutional regime that has allowed these practices to flourish, are primarily responsible for the privacy inequities. This Article will explain how current Fourth Amendment standards afford less protection to economically disadvantaged citizens (particularly, the urban-dwelling poor) when compared with more affluent citizens. I will also argue that this jurisprudence is largely unchanged by the Court\u27s recent decision in U.S. v. Jones. This abstract has been adapted from the author\u27s introduction

Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem

Remedying an elusive practice such as racial profiling remains a challenging issue for the judiciary and reformers must rely on other avenues for a solution. For example, even where evidence demonstrates that minorities are disproportionately stopped and searched, courts rarely recognize the victim\u27s claim or provide relief. Thus, it is clear that courts will not be the catalysts of change. This Article argues that while courts may be reluctant to provide judicial remedies, police departments themselves should not ignore [minorities\u27] perceptions [of racial discrimination] and should take measures to reduce any possible profiling and increase partnerships with communities. An indication that a police department may be engaging in racial profiling has a detrimental and far-reaching impact not only on the individuals who experience it first-hand, but also on other members of the targeted community. Ultimately, this pernicious practice threatens to undermine legitimacy in law enforcement and the criminal justice system for large segments of society, which impacts society as a whole. [This Article] concludes by suggesting proactive remedies institutions and policymakers should consider to alleviate the tensions between communities and police officers with respect to racial profiling. Data collection efforts are imperative to educating the public and police agencies about racial profiling, but these efforts fall short as a long-term remedy. Therefore, in addition to data collection during traffic stops, this Article proposes several policy solutions that the federal government and state legislatures should implement to address racial profiling within local law enforcement agencies. This abstract has been adapted from the author\u27s introduction

Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors

It has become clear that there is a systemic problem with holding police accountable, as many officers have walked away scot-free in the wake of a number of recent police brutality incidents, including the tragic deaths of Michael Brown, Eric Gardner, and Freddie Gray. After assessing a number of proposals to address the accountability problem, this Article suggests that a focus on the appointment of special, independent prosecutors to handle these cases is important in order to hold police accountable for their brutal acts

Cooperative Federalism and Police Reform: Using Congressional Spending Power to Promote Police Accountability

Police misconduct and corruption persist in our nation\u27s local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the DOJ ) the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government\u27s current strategy represents a promising model for reform, the DOJ\u27s efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play a more active role in implementing institutional reform of these agencies, and they must have the flexibility to develop locally tailored police accountability measures. This Article proposes a model that encourages federal-state cooperation to address the longstanding questions of how best to promote police accountability within local law enforcement agencies and which entities should be responsible for implementing reform. Congress, pursuant to its spending authority under the U.S. Constitution, should condition federal funding to state and local law enforcement agencies upon the state\u27s development and implementation of regulations to reduce police misconduct and promote police accountability. Specifically, this Article proposes an amendment to the statute authorizing the Community-Oriented Policing Services ( COPS ) program. This Amendment would require the federal government to withhold 5% of COPS funding from states that fail to implement measures to reduce police misconduct and promote police accountability. The COPS program has distributed billions of federal dollars to states to hire police officers and implement community policing programs, but the authorizing statute includes no requirement that the agencies receiving these funds ensure the accountability of the officers they hire. Pursuant to the model proposed in this Article, states would develop their own standards to promote police accountability and reduce police misconduct, while the DOJ would determine if the measures met minimum federal guidelines. Thus, the proposed regime is consistent with cooperative federalism, a process in which states implement federal standards, yet retain the flexibility to develop and supplement those standards. This Article explores several justifications for implementing this scheme, examines the constitutionality of the proposed amendment, and concludes that the proposal is a viable tool to achieve sustainable reforms in the nation\u27s local police departments

Stakeholder Participation in the Selection and Recruitment of Police: Democracy in Action

Modem police culture tolerates or cultivates police misconduct and corruption in many ways. Failures to identify, monitor, and discipline problem officers; a belief that violence is a necessary part of law enforcement; and the code of silence; are organizational characteristics that need to be addressed in order to remedy organizational failures to hold law enforcement officers accountable. In order to address these cultural characteristics, police departments should carefully select police officers less likely to engage in these behaviors and adhere to these beliefs. Viewed through the lens of stakeholder participation, however, a fundamental shift should occur regarding how these new officers are selected. Consistent with the principles of community policing, police departments should develop processes to allow the community to participate in the selection and recruitment process. Although community involvement in the selection of officers has long been a component of many departments\u27 implementation of community policing, when suggesting or implementing organizational reform, there has been no requirement or even incentives to support the involvement of the community in this way. Therefore, this Article asserts that true democratic policing allows for the participation of the community in all aspects of policing, and that this involvement should begin as early as recruitment and selection of the police officers who will serve the community. This Article offers a modest proposal for ways in which the federal government could encourage or incentivize the inclusion of the community in the hiring and selection process. Specifically, this Article advocates that the federal government should require police departments within its jurisdiction pursuant to 42 U.S.C. § 14141 to implement such programs. Furthermore, for jurisdictions that have not come within the purview of the United States Department of Justice\u27s ( DOJ ) federal pattern or practice authority, the government should encourage and incentivize local community involvement in hiring police officers by making grants to departments that devise successful programs. This abstract has been adapted from the author\u27s introduction

The Coming Crisis in Law Enforcement and How Federal Intervention Could Promote Police Accountability in a Post-Ferguson United States

The proliferation of aggressive, and sometimes militarized, police tactics represents the coming crisis in law enforcement, although many residents of [inner city] communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities. This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional reforms of the larger police organization. Increased transparency and accountability, as well as meaningful involvement of community members, will be hallmarks of any reform agenda aimed at curing the coming crisis in law enforcement. This Essay also addresses the important role that the federal government can and should play in achieving these goals. This abstract has been adapted from the author\u27s introduction

Body-Mounted Police Cameras: A Primer on Police Accountability vs. Privacy

Immediately following the shooting death of Michael Brown in Ferguson, Missouri and the death of Eric Garner at the hands of a New York Police Department officer, criminal justice advocates called for greater measures to hold police officers accountable for their actions. For many observers, the failure to secure criminal indictments against the officers involved in each of these deaths of unarmed citizens suggested various shortcomings in the criminal justice system. One of the most hotly contested reform proposals involves requiring police officers to wear body cameras. The NAACP, the ACLU, and The Lawyers\u27 Committee for Civil Rights Under Law have supported initiatives requiring police to wear body cameras. In addition, President Obama announced that $75 million of federal money would be made available for local law enforcement to purchase and train officers to use body cameras. Body-mounted cameras are not a new technology, and the number of police departments using them is increasing. However, a 2013 study conducted by the Police Executive Research Forum found that less than 25 percent of the 254 departments surveyed were using the cameras. Even many of the agencies that are using the cameras are racing to develop sound policies for their use. Similarly, a number of state legislatures have introduced bills to regulate the use of police body cameras. This essay highlights some of the emerging issues and policy implications with respect to body cameras and raises questions for future study. This abstract has been adapted from the author\u27s introduction