Discipline and Policing

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards. This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs. First, making PDRs public will may lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs. The problem with individualized transparency is not theoretical. In fact, it has been much critiqued by scholars in a different but comparable realm: the wide dissemination of criminal records. PDRs and criminal records have similar problems: due process issues, inaccuracy, arbitrary and discriminatory enforcement, and permanent reputational harm. Indeed, the rhetoric used by law enforcement to defend their privacy rights sounds almost identical to the critiques that scholars make of criminal record transparency. This Article argues that the comparison of PDRs and criminal records is instructive because it allows us to view criminal records through a new lens. As with criminal record publication, forced PDR transparency will likely not solve the problems advocates hope it will. Thus, this Article concludes that a more nuanced regime should be put in place for PDRs, and that advocates should use law enforcement rhetoric to support a more privacy-protective regime for criminal records

How We Prosecute the Police

Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host of undertheorized questions about how the police are treated when they become the subject of criminal prosecutions. This essay is part of a larger project wherein I examine the ways in which criminal procedure is different for the police than other suspects. Here, my focus is on the seemingly special precharge and preindictment process that police receive. Prosecutors have the discretion to investigate cases before charging and to present robust cases to grand juries for any suspect. Yet, most charging decisions are reflexive and uninvestigated. Similarly, most grand jury hearings are dominated entirely by prosecutors who present one-sided, highly curated versions of events. As we have seen repeatedly, however, when police liberty is on the line, these processes change: prosecutors conduct a thorough precharge investigation and they present a full account of an accusation, including exculpatory evidence, to grand juries. This extra criminal process for the police has led to what many see as a lack of criminal accountability. In response, scholars and politicians have called for prosecutors to treat the police more like other suspects: to strip the police of the precharge/preindictment process they receive. Here, I argue that the reverse solution is far more powerful: prosecutors should extend the precharge and preindictment process they give police to all criminal suspects. A host of reformative possibilities would flow from more careful investigation and evidence weighing before a criminal suspect is charged or indicted. Moreover, reallocating resources to this important moment in the criminal justice process could reduce the untenable costs of our overburdened system

We Need to Talk About Police Disciplinary Records

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who care both about transparency for public servants and privacy for individual citizens: how and when police should be forced to make their disciplinary records public. This essay addresses the debate over whether individual officer\u27s disciplinary records should be made public. It looks at the benefits to making such records public in courtroom situations and the drawbacks to more public availability. It also compares the debate over police disciplinary records to the debate over the publication of criminal records

The Progressive Love Affair with the Carceral State

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber

Who Shouldn\u27t Prosecute the Police

The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked with investigating and charging cases against officers who commit crimes. This article argues that a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police. This article theorizes the disqualification of legal actors from their traditional roles by drawing out a number of themes from conflict law: that the criminal justice system must appear just, and that judges and attorneys alike must not have a personal stake in the outcome of litigation. It then lays out a full account of the personal and professional interconnectedness between local prosecutors and the police. Then, using conflict of interest theory, it details how asking local prosecutors to become adversaries of their closest professional allies raises process-oriented and democratic legitimacy issues, particularly in our racially charged criminal justice system. It concludes that the conflict of interest between local prosecutors and police defendants is so anathema to our system of justice that it requires removal in every police-defendant case. Finally, it turns to the question of who should prosecute the police and proposes several potential solutions

Police Prosecutions and Punitive Instincts

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal system’s footprint, are deeply problematic. It shows that police prosecutions legitimize the criminal legal system while at the same time displaying the same racism and ineffectiveness that have been shown to pervade our prison-backed criminal machinery. The Article looks at three recent trials and convictions of police officers of color, Peter Liang, Mohammed Noor, and Nouman Raja, in order to underscore the argument that the criminal legal system’s race problems are playing themselves out predictably against police officers. The Article argues that we should take the recent swell of prison abolitionist scholarship to heart when we look at police prosecutions and adds to that literature by exploring this controversial set of defendants that are considered a third rail, even among most abolitionists. Second, the Article argues that police prosecutions hamper large-scale changes to policing. By allowing law enforcement to claim that brutality is an aberration, solvable through use of the very system that encourages brutality in the first place, we re-inscribe the failures of policing and ignore the everyday systemic and destructive violence perpetrated by police on communities of color. In order to achieve racial justice and real police reform, we must reduce our reliance on the police, rather than looking to the criminal legal system to solve this crisis

Police Suspects

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated agreements protect police from tactics that are part and parcel of the confession-inducing playbook these same officers use when questioning civilian suspects. This Article investigates these formal procedural protections for police suspects. It argues that, as criminal justice insiders, police have dealt themselves special protections from police questioning based on their knowledge of what protections a suspect needs most when facing interrogation. Meanwhile, the police continue to argue that, without using these selfsame tactics on other suspects, their ability to catch and convict dangerous criminals will be hampered. The distributive inequality created by special police rights threatens the fairness and legitimacy of the criminal justice system in several ways: it skews the relationship between the most sophisticated suspects and the amount of protection they receive; it sullies the appearance of justice; and it decreases the normative value of criminal law. The nascent awareness of these special interrogation protections has led a number of scholars and commentators to call for removing LEOBOR rights from police in order to achieve accountability and distributive equality. Yet the opposite response may be theoretically and practically superior. As criminal justice insiders, the preferences police negotiate for and receive can serve as a model for ways to reform a particularly problematic part of our criminal justice system. Thus, before we strip protections from the police, we should look hard at how these protections might apply to all criminal suspects

Interrogation Parity

This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create inequality in our criminal justice system. In this Article, we propose a novel method by which the federal government could combat this distributional inequality while promoting broader reform in the area of police interrogation procedures. This Article proposes that Congress use its spending power to condition funds to police departments on the adoption of uniform, minimum protections for both police and civilian suspects facing interrogations