Reducing Police Misconduct: There’s a Better Way

Police misconduct — in the forms of false arrests, uses of excessive force, perjury, tampering with evidence or witnesses, falsifying reports, and other wrongful behaviors — is far too common. A USA Today study published in April 2019 found that at least “85,000 law enforcement officers across the USA have been investigated or disciplined for misconduct over the past decade.” In addition, “more than 30,000 officers …were decertified by 44 state oversight agencies.” There has to be a better way to deal with this problem, and below I sketch out one such solution: share the annual cost savings with the cops.

Police misconduct injures the people involved, damages the relationship between the community and police, reduces confidence in the judicial system, and lessens our sense of community.  One result of misconduct that is rarely discussed is the cost for jurisdictions and taxpayers. Misconduct wastes money that could be used for better purposes. The Marshall Project studied “public records from 31 of the 50 cities with the highest police-to-civilian ratios in the country…. [It found] the cities have spent more than $3 billion to settle misconduct lawsuits over the past 10 years.” 

New York City paid out more than $179 million in prelitigation claims, civil judgments, and claims for police-related lawsuits in fiscal year 2019, according to ABC News.  But this was only a fraction of the real cost to the city.  Additional costs included: staff to investigate complaints, keep records, try cases, and pay claims and settlements. Then there are additional judges, courtroom staff, defense attorneys and their support staff to handle resulting trials, all of whom receive salaries, benefits, furnished offices, and support staff.  There are additional courtrooms and jury costs, not included in the New York City calculation.

The true costs of misconduct can serve both as a method for approximating the level of misconduct and as a tool for improving departmental behavior.

There have many attempts to improve police behavior. Some reforms came out of the activities in the ’60s and ’70s.  A reform movement made significant changes to police agencies, training, selection, and tactics. Another method has been to establish and increase enforcement of regulations on officer conduct.  However, Vittana.org cites many factors that make it unlikely police behavior will be improved by increased enforcement efforts.  Half of officers report that law enforcement officials often turn a blind eye to improper conduct, and 61 percent of police officers state that they do not always report serious abuse that they’ve directly observed. And “84 percent of police officers have stated … that they have directly witnessed a fellow officer using more force than was necessary.”

In the last few years, there has been an increased focus on nondiscrimination and racial justice. This has translated into an increase in public anger toward the police, often resulting in a desire to punish local police departments by cutting their budgets.  The New York Times reports that since the death of George Floyd, at least 42 of the 50 largest cities in the country have adopted new rules aimed at curbing abuses by the police. There have also been widespread efforts to cut departmental budgets. According to New York City’s Citizen Budget Committee, the Police Department’s “City-funded operating budget is projected to decrease by $345 million, or 6.6 percent, from fiscal year 2020” to fiscal year 2021. “This year-to-year decline is greater than the 3.6 percent agency average.” Reductions in police department budgets reduce misconduct, but such reductions also reduce police services. 

What about numerous other strategies to  improve police behavior? These include removing officers’ legal shield from liability when the City and officer are jointly sued for an officer’s misbehavior; better training; different trainers; demilitarization of departments; removing arbitrators; and the increased use of body cams. It is unlikely that any single change will improve behavior to the desired level.

The officers on a call are in the best position to see what is happening and to intervene in officer misconduct, but many officers are reluctant to intervene in the misconduct they observe. So how can we incentivize officers to interrupt and discourage the negative behavior of their colleagues when they see it? 

Some jurisdictions have favored “duty-to-intervene” laws or policies. These rules place an affirmative duty on offices to stop and/or report specific behaviors by fellow officers. The validity of such rules is questionable. The U.S. Supreme Court has held, in Castle Rock v. Gonzalez, 545 U.S. 748, that Colorado law does not make officers’ enforcement of violations of restraining orders mandatory. Given officers’ reluctance to rat on their colleagues. I doubt such rules will significantly reduce misbehavior.  

Instead, here’s a positive, financial-based method that may have greater success in incentivizing officers to interrupt the negative behavior of their colleagues by sharing reductions in the cost of police misconduct with the officers.  Such a plan could work like this:

• Calculation of Total and Target Costs. The jurisdiction would calculate, to the best of its ability, the total cost of police misconduct for each of the previous five fiscal years. The total would be divided by five resulting in the Average Cost.  Using a five-year running average helps to reduce the impact of unusual events.  This five-year average could then be adjusted by the estimated change in population and inflation for the coming year. Alternatively, the jurisdiction’s legislative body could simply set reasonable annual targets. Whichever means is used, this figure would become the Target Cost for the next fiscal year. 
• Distribution of Savings. After the conclusion of the first year the plan is in place, the jurisdiction would calculate an inclusive total cost of police misconduct for that fiscal year.  If the total cost of police misconduct for the year is less than the Average Cost, the reduction would be divided 50-50 between the jurisdiction and its officers.
•  Division of Savings. For example, if the savings in a given year were $1 million, $500,000 would go into the jurisdiction’s general fund and $500,000 would be divided among members of the police department.  Ninety percent of the department’s share would be divided equally among street officers, subject to limitations discussed below, and 10 percent divided equally among the department’s administration.
• Ineligibility for Distribution of Savings. The governing board of the jurisdiction would determine which members of the department would be ineligible for portions of the savings.  Examples would be an officer disciplined by the department for serious misconduct, excessive force, wrongful arrest, false information, or testimony. They would lose their share for the year of the finding of wrongful behavior and one additional year. Also, ineligible officers would be those present at two events of misconduct within four calendar years who failed to attempt to stop the use of excessive force at the time or to come forward to correct false reports or testimony by others within a month of the misconduct.  The money forfeited by the ineligible offices would go into the pool for the eligible officers.

We won’t know if this approach can work until some brave department gives it a try.