Hello everyone!
I decided to move my blog over to my Substack page, which is titled “Shjarstack.” So far, it has provided much more, including an email notification to free subscribers when I do make a post. If you enjoy reading my posts, then I encourage you to subscribe (for free of course).
Most political and public discussion of crime, and by extension crime policy, is divisive and unproductive. In fact, it actually pains me to listen to pundits and politicians make their case – especially during short-form, split-screen or roundtable panels where all nuance is lost and sound bites prevail. A few years back, I wrote about how partisans on both sides are consistently wrong about policing and criminal justice matters more broadly.
Deception and bad faith arguments aside, I do believe that the majority of peoples’ intent is fine (I could be wrong, and I’m trying hard to move away from my cynical/pessimistic tendencies). They are making their specific case for how to address crime, reform policing or other aspects of the criminal legal system, etc. Both the causes of crime and the preferred solutions are based on their overall worldview, which is related to and influenced by politics. However, most politicians and *partisans suffer from the inability to see the other side of the spectrum.
Crime and desistance from offending behavior can be attributed to BOTH structural/sociological AND cultural as well as agentic/individual factors.
The biggest issue I see is that liberals and progressives tend to focus, almost exclusively, on the structural/sociological correlates: neighborhood/community characteristics (e.g., concentrated/economic disadvantage, racial/residential segregation, lack of collective efficacy), family upbringing, peer influence, inequality and lack of opportunity. They usually neglect cultural explanations and the belief that people have agency and the ability to make choices whether to offend or not. Or culture and agency are secondary to the structural/sociological factors.
Conversely, conservatives tend to focus on the **cultural and agentic explanations of crime. Regarding the latter, people are in control of their own destiny. Crime and desistance are a decision-making process where we, as rational people, weigh the pros/benefits and cons/costs before acting. People can be deterred by increasing the perceived costs of crime – through certainty of getting caught and the severity of punishment – so that “crime doesn’t pay.” Conservatives usually neglect the broader structural factors that influence offending and, at the very least, lead to bounded rationality.
This may be a bit of an oversimplification, but it is based on Herbert Packer’s crime control versus due process model.
Both groups are wrong, especially the closer that individuals creep to either end of the abovementioned spectrum. We, as a society, run into problems when not considering how both structure and agency are relevant in the causes and solutions of crime.
Structure AND agency. It reminds me of an article that was led by a fellow Ph.D. student at ASU. Kim and colleagues engaged in a bit of theoretical integration by combining elements of a macro, sociological theory with elements of a micro, agentic theory by examining perceptions of deterrence in the broader context of neighborhoods. It incorporated ideas from social disorganization and deterrence theories, finding that adverse neighborhood conditions influence perceptions of certainty and severity. More adverse neighborhood conditions were associated with 1) lower perceived certainty of punishment and 2) less perceived shame associated with getting in trouble. The main takeaway is that context matters when it comes to perceptions of deterrence. Focusing on deterrence at the individual-level is incomplete.
Let’s not let partisanship cause us to miss roughly 50% of the explanation of crime and offending behavior.
* = I am a registered “unaffiliated” voter in the state of New Jersey. I don’t think either political party governs particularly well or looks out for average Americans (relative to how much they both cater to special interests and the corporate donor class). Partisanship clouds one’s judgement, much like a drug. To remain as objective as possible as a researcher and social scientist, it’s best to try to avoid it.
** = Historically, much of the conservative discussion surrounding “culture” in an offending context focuses on the detrimental effects that may stem from being poor and Black: broken families/single-parent households, unwillingness to cooperate with law enforcement, etc. It took Sampson and Wilson in their 1995 “racial invariance hypothesis” for non-conservative scholars to even address culture. They connected the dots between structural factors leading to cultural adaptations – a model that I find provides a more complete explanation of crime and offending behavior.
While my research interests are specialized in policing, I usually teach a broader set of classes. They include “Theories of Crime and Criminality” (i.e., criminology”) and “Survey of Criminal Justice” (i.e., introduction) in addition to undergrad and graduate-level classes on “American Police” and “Police & Society”, respectively. I enjoy teaching the first two, particularly Survey/Intro since it is usually students first exposure to quality and rigorous information on the criminal legal/justice system for majors/minors as well as those taking the class as an elective.
The Survey/Intro class tries to strike a nice balance of breadth and depth with a focus on topics like: the political nature of crime control, policing, courts and sentencing, institutional corrections, probation/parole, offender reentry, crime control outside of the formal legal/justice system (e.g., communities, schools), etc.
I try my best to keep current on all of these areas, but admittedly it is difficult (there’s so much to read and consume for my policing research agenda and I have personal life with a wife and two small children both under 3). I rely quite a bit on the Bureau of Justice Statistics’ publication series, The Sentencing Project, and The Prison Policy Initiative, among other sources, for somewhat updated big-picture trends in the areas that I’m more deficient in.
I recently came across The Prison Policy Initiative’s “Punishment Beyond Prisons 2023” report. It covers raw numbers and rates of both incarceration AND community supervision in the US and across all 50 states. Upon reading the report and curious about how my home state of New Jersey stacked up, I was surprised. But I’d like to back up a bit.
Community corrections like probation and parole, IMO, are neglected aspects of our criminal legal/justice system. Policing, mandatory minimums, mass incarceration, and racial/ethnic disparities in sentencing and jail/prison populations are more likely to capture the general public’s attention. How many students ever report that they aspire to be probation or parole officers when they graduate? Close to none – in fact, I don’t think I’ve ever had a student say that probation/parole was their dream job. For them, it’s either law enforcement (particularly federal) or law and/or graduate school. Most probation and parole officer jobs require a four-year degree.
Why do we neglect community corrections? In 2022, the most recent year that BJS’ “Correctional Populations in the US” has available, only one-third of all adults under criminal justice supervision (i.e., not “free” to do and live as they would like without restrictions) are locked up in state/federal prisons or jails (1,827,600). Two-thirds are monitored and supervised in the community on probation or parole (3,668,800). We are missing a huge piece of the punishment pie when exclusively focusing and reporting numbers/rates on institutional corrections. In fact, this often-missing piece makes our already high rate of incarceration – from an international comparison – look even worse. Rather than focus on mass incarceration, shouldn’t we do a better job of broadening the discussion to “mass punishment”?
Back to how New Jersey stacks up with incarceration and mass punishment. There is wide variation in rates of incarceration across US states. New Jersey is often viewed as a blue state with a liberal or even progressive correctional system. After all, it had the 5th lowest prison rate in the county in 2022 with 137 people in prison per 100,000 (compared to a US prison rate of 355 per 100,000).
While fewer people are locked up, this does not necessarily translate into reduced institutional corrections expenditures. Correctional officers in the state make decent money, so prison expenditures are high. According to a Vera Institute of Justice report, as of 2015, New Jersey spends an average of $61,603 per inmate per year. This ranks 4th highest out of the 45 states that reported data and nearly double the national average of $33,274 per inmate per year.
Still, 5th lowest prison rate in the country is something to be proud of right? Here is where community corrections and PPI’s “Punishment Beyond Prisons” resource comes in handy. Turns out, New Jersey relies on community corrections quite a bit with approximately 120,000 people on probation and another 15,000 on parole.
Here’s some commentary from PPI: “Looking closely at state variations in the use of various forms of correctional control reveals just how differently states mete out punishments; in particular, states vary tremendously in their use of community supervision. For example, New Jersey, a so-called ‘progressive’ state below the national average of 566 per 100,000 residents when it comes to incarceration, is among the most punitive in the nation when you look at its full system of correctional control. Among the 50 states and D.C., New Jersey ranks 20th in mass punishment, subjecting 1,712 per 100,000 of its residents to confinement or community supervision.”
PPI continues: “Considering each state’s total mass punishment system leads to other insights: Residents of New Jersey (1,712 per 100,000 under correctional control) are more than twice as likely to be caught up in their state’s mass punishment system compared to New York residents (830 per 100,000).”
Much different picture than 5th lowest prison rate in the US that is slightly lower than New York’s rate of 159 per 100,000.
Mass punishment gets us closer to understanding the truer nature of the size/scale, cost, and racial/ethnic disparities of our full correctional system. We should pay more attention to is. Let’s start using PPI’s “Punishment Beyond Prison” in our research, teaching, and public discourse. I look forward to incorporating it into my Survey/Intro classes next semester!
I was recently interviewed by a journalist from the Pittsburgh Post-Gazette for an article about the fatal police shooting of a 48-year-old man. He was experiencing a mental health crisis in which the police were called to assist. Armed with a knife that he refused to drop, he was shot and killed by officers. The central questions that the journalist posed included: “can officers shoot to injure/incapacitate for certain encounters?” (specifically non-firearm threats) and “do they have to aim center mass all the time”? The journalist and her subsequent article are referring to so-called “shoot to injure/incapacitate” options in which officers can – provided that deadly force is justified – aim and shoot non-center mass (e.g., lower abdomen/pelvic girdle; arms; legs) for non-firearm threats, specifically knives/edged weapons and blunt objects, in order to reduce mortality.
Prior to last week, I hadn’t thought much about such policies/options since the summer of 2021 when I served as a panelist during a policy debate at the Peace Officers Association of Georgia’s (POAG) annual conference. That debate was chaired by John B. Edwards, POAG’s Executive Director and one of the most thoughtful minds I’ve encountered in American policing. David Klinger, Seth Stoughton, Renee Mitchell, Eric Daigle, William Lewinski, and Alexander Eastman were also panelists. The panel debate was spurred by LaGrange, Georgia’s Police Chief Lou Dekmar’s “shoot to incapacitate” policy that he enacted about a year prior. It received much attention, including both praise and criticism. You can read a bit about it here and here.
After the conference, all panelists were asked to write a short (1-2 pages) response to the question: Would any of you on this panel take this policy back to your agency to be implemented if you were my sheriff? [police chief or agency head] a simple yes or no. It was published in “The Georgia Peace Officer” – the statewide magazine of POAG.
Here was my response, which largely rings as true today as it did back in 2021:
“It is difficult for me to provide a definitive answer to this question. As one of the few panelists who has never been a sworn law enforcement officer, I have little idea what it is like to be in a situation that may call for deadly force to be used. I cannot relate to those officers who are forced to make often split-second decisions with a lack of clarity. Perhaps I would feel differently if I received standard police use of force training or even participated in role-playing shoot/don’t shoot scenarios. Therefore, I will not commit to giving a “yes” or “no.” However, I will say that this policy is certainly deserving of more attention and that it should not be dismissed outright.
Given the totality of the circumstances and the piecemeal approach of the available data, there is sound justification to further explore the utility of “shoot to incapacitate.” The policy is limited in when officers can choose to aim to injure in their attempt to avoid shooting center mass. It will not apply to the majority of police shootings, particularly when officers are being threatened by a firearm or an object perceived to be firearm (e.g., toy/replica or “threat perception failures” where an item like a phone is thought to be a gun). Instead, the policy will only come into play – as another option for officers – in situations where a citizen is in the possession of a knife/cutting instrument or a blunt object when deadly force is already justified.
If the aim of the policy is to preserve the sanctity of life and reduce mortality of those on the receiving end of police gunfire in the aforementioned specific scenarios, then there is a non-trivial number and percentage of deadly force incidents nationally that could potentially benefit from “shoot to incapacitate.” Using data from The Washington Post’s Fatal Force catalogue, from January 1, 2015 through August 14, 2021, 1,158 people were fatally shot when threatening officers with a knife/cutting instrument (18% of all cases) with another 107 who were threatening officers with a blunt object (2% of all cases). Collectively, these situations make up 20% - one-fifth – of all cases of fatal police gunfire over a six-and-a-half-year period. This means there are likely a couple hundred instances across the country each year where aiming and striking non-center mass might preserve life. Survivability is likely partially contingent on officer firearm proficiency (i.e., “hit rates”) and whether bullets can be placed in their desired locations on the body, which is another necessary conversation that needs to take place in concert with such a policy.
Perhaps the most compelling reason to consider the shoot to incapacitate policy comes from the limited information we know about mortality and gunshot location. Whether bullets strike vital organs, specifically in the head/neck and upper chest region, is a critical factor in whether a person lives or dies after being shot. These figures must be pieced together since there is a lack of systemic and consistent data collection efforts of non-fatal shootings. However, data on fatal and injurious shootings in the general population in Boston, MA (2010-2014) as well as police shootings of citizens in California (2016-2019) (see below images) indicate that wounds to the head/torso are most likely to be fatal, while shots to arms and legs are most likely survivable.
From Anthony Braga’s (2021) essay for the Manhattan Institute.
From Nix and Shjarback’s (2021) article in PLoS ONE.
Departments should take all these factors into consideration during the decision-making process, including an analysis into their own history of deadly force and where each agency is geographically located. If, for example, a department’s officers commonly use their firearms in situations with threats of knives/cutting instruments or blunt objects, then “shoot to incapacitate” may warrant more attention. For other departments that largely use their firearms in response to gun threats, such a policy might be less relevant and unnecessary. If the goal, again, is to preserve life, then community context should also be explored. In rural or remote areas where the time and distance to trauma centers is greater, such a policy could be more beneficial to survivability chances. Each and every one of these dynamics – that are department-specific – should weighed by leadership.
A few members of the panel highlighted the idea of unanticipated backfire or revenge effects from this policy. More specifically, an officer who would have otherwise decided not to shoot now takes the shot because he or she is simply shooting to injure/incapacitate. This is a valid concern that we should study and monitor closely. Providing more options for officers may be akin to “net widening” in other criminal justice contexts where newly created intermediate sanctions (e.g., home confinement, electronic monitoring) grew the supervised population even more. However, it is also possible that such backfire/revenge effects can be addressed and minimized by specific policy language with clear guidance that is reinforced by training. Additionally, panelists made the point that we should be restricting officers from taking the shot to begin with if we want to save lives. I wholeheartedly agree, although I do not think this idea and “shoot to incapacitate” are mutually exclusive. The two can work in concert with one another. When applying the Swiss cheese model of accident/failure causation to preserving life in police-citizen encounters, “shoot to incapacitate” policies can be viewed as an additional layer once an officer’s decision to discharge the firearm cannot be avoided.
I will conclude with one final thought. This policy debate is not uncharted territory. American law enforcement has been down this road before. In fact, the history of the profession is ripe with countless examples of departments and their officers both making and responding to drastic changes – some external and others internal. Think about the US Supreme Court’s “due process” revolution in the 1960s (e.g., Mapp v. Ohio, Miranda v. Arizona). Some at the time thought it was going to be the end of policing. Most relevant to the current discussion is the evolving deadly force standards that took place in the 1970s and 1980s. The prevailing “fleeing felon” legal standard allowed police officers to shoot in order to prevent the escape of a person(s) they believed to have committed a crime. In 1972, New York Police Department Commissioner Patrick Murphy narrowed officer discretion through a more restrictive administrative policy to only shoot only in “defense of life” situations where there was a risk of death or serious bodily injury to officers or others present. Departments across the country followed suit through the 1970s and early 1980s. An overwhelming body of empirical research found that such policies resulted not only in fewer police shootings of citizens in general, but the largest reductions took place among the most controversial, highly discretionary incidents where officers discharged their firearms against unarmed citizens who were running away. The more restrictive changes did not jeopardize officer safety like many had feared. When the US Supreme Court finally ruled on the matter of legal standards for deadly force in Tennessee v. Garner in 1985, the decision had little impact on American policing since the vast majority of departments had already adopted the more restrictive standards even though they had not been required to do so legally – an argument brought up on panel. The “shoot to incapacitate” debate is eerily similar to this very transformation in in the 1970s/80s. What can we learn from our collective history? The policy is worthy of future discussion and, of course, evaluation and critical assessment.”
Researchers, journalists, and activists alike commonly set out to explore racial/ethnic disparities in the justice system and, more specifically, policing outcomes. Nowhere is this more common in policing than trying to examine “racial profiling” or “DWB” in vehicle/traffic stops. Since the early 2000s, following media attention and federal intervention into the New Jersey State Police, a number of states created data collection systems to track the race/ethnicity of all stopped motorists. The early adopters were states like Missouri and Illinois; however, there are (as of 2021) 23 states plus Washington, DC that require the collection of standardized measures when an individual on the road is stopped by police. In most cases, those department-level measures of vehicle stops across racial/ethnic groups are publicly available, and they provide opportunities for anyone to take a look.
A common practice is to then compare the race/ethnicity of stopped motorists to an external benchmark – or an estimate of the racial/ethnic distribution of drivers who could be expected to be pulled over if officers were engaged in an unbiased or neutral manner. Comparisons show whether drivers of a certain race/ethnicity are stopped equally or if they are over- or under-represented relative to the benchmark used. By far, the most frequently used benchmarks (especially early on in research) were population-based measures from the US Census Bureau. Many researchers, government reports, journalists, activists, and police organizations themselves still rely on these population-based benchmarks to this day when testing for racial/ethnic disparities.
Yet, these “first generation” benchmarks are incredibly flawed. Using the racial/ethnic composition of those aged 16+ makes a ton of assumptions, namely that everyone of age has a car and drives. There is no imaginable way to possibly account for driving behavior, such as speeding and other traffic/safety violations, across racial/ethnic groups. “Second and third generation” benchmarks – like footage from red light cameras, at-fault versus not-at-fault crashes, systematic social observation, and “veil of darkness” tests – are arguably better. Still, these measures are often difficult and time consuming to come by. In fact, I once worked with a police department that decided it would take too much time and effort to gather and synthesize a few years’ worth of their OWN crash data in order to calculate this type of benchmark! For these reasons, population-based benchmarks are used a lot due to convenience and data availability. Admittedly, I’ve used census-level benchmarks of the racial/ethnic composition of those aged 16+ in municipalities for analyses when no alternative benchmarks exist.
Related to this first-generation benchmarking problem, states who provide publicly-available stop data aggregate counts of drivers’ race/ethnicity without any other information to clarify where those individuals live. There is no specificity as to whether a stopped motorist is a resident of the municipality where he/she is pulled over OR if they are visiting/passing through. This means that all analyses that rely on population-based benchmarks are potentially biasing the presence or absence of racial/ethnic disparities in vehicle stops by lumping residents and non-residents/visitors together.
I have a research note currently under review that explores this very issue. In 2018, Missouri added a driver residency question that began distinguishing between traffic stops of residents of the jurisdiction where the stop occurred separately from the total number of stops (i.e., stops of residents and stops of non-residents). This new feature allows for the calculation of the number and percentage of stops each department makes of those who live in its respective jurisdiction versus those that do not. I limited the sample to all 126 local/municipal police departments serving jurisdictions with 5,000+ residents from the 2019 American Community Survey estimates. Here is the big takeaway:
Of the 126 departments, 267,710 of all stops were of residents in the jurisdictions where they were stopped (38.8%) and 422,351 stops were made on non-residents (61.2%). When examining residents versus non-residents at the department-level (i.e.., agency units of analysis), an average of two-thirds of all traffic stops were conducted on motorists who did not reside in the municipalities they were stopped in. Such figures create apple-to-oranges comparisons with population-based benchmarks from the US Census Bureau, and likely render the calculation of racial/ethnic disparities as unreliable in many cases. We must “proceed with caution” in any of these analyses, and I hope more states follow Missouri’s lead by differentiating whether stopped motorists live in the jurisdiction in which they are stopped.
Police reform discussions and efforts have been ongoing for the past 8.5 years following Ferguson in 2014 and certainly the murder of George Floyd in 2020. One of the proposals that has garnered a lot of attention and some tangible policy movement is “independent or special prosecutors” in cases of police use of deadly force. While critiques of conflicts of interests and the close ties between local prosecutors and police agencies are nothing new, the fatal shooting of Michael Brown by then-Ferguson police officer Darren Wilson became a rallying cry for such independent investigations. Remember that a whirlwind of questions surrounded the impartiality of the St. Louis County District Attorney at the time – Bob McColloch. His father was a police officer who was killed in the line of duty. Many doubted his ability to present fair and relevant information during the grand jury proceeding, which ultimately decided not to indict Wilson. It led to public and political debate and, ultimately, a number of states adopting formal policies and legislation that mandate “independent and/or special” prosecutors to conduct investigations and panel grand juries in cases of deadly force. Independent or special prosecutors have been recommended by both the President’s Task Force on 21st Century Policing and among activist groups like Campaign Zero.
President’s Task Force on 21st Century Policing (2015).
Campaign Zero.
At the time in 2014, Connecticut was the only state that had a law on the books. Beginning in 2012, the law requires a special prosecutor – authorized by the state’s Division of Criminal Justice – to investigate and potentially prosecute cases involving police officers using deadly force. Since then, Wisconsin, Utah, Maine, New York, and New Jersey have all followed suit with most taking the form of the state’s office of the attorney general stepping in as opposed to county prosecutors/district attorneys doing so (the status quo in many places still). Some are incredibly narrow, such as New York and California, and only trigger an independent or special prosecutor in incidents resulting in the deaths of unarmed citizens or if there is a question whether the deceased was armed. Others are a bit broader and capture all fatalities at the hands of law enforcement throughout the state or even all cases where deadly force was used (i.e., all firearms discharges) – regardless of whether the person lives or dies.
New Jersey’s law mandating independent or special prosecutors was signed by Governor Phil Murphy on January 30, 2019. It moved investigations into police-caused deaths from county prosecutors to the state attorney general’s office and requires that cases be presented to a grand jury. It has now been four years since the law went into effect, and folks at NJ.com/NJ Advanced Media just released a special report. You can read it here. It is long and thorough, but I encourage you to check it out if you have the time/interest. Here’s what their lengthy investigation found:
75 police-involved death investigations (29 remain in-progress and undetermined).
Of the 46 investigations that have been concluded, only one led to a grand jury indictment of an officer – not for murder but for official misconduct.
The investigations typically take 2 years to complete (comparable to the amount of time investigations in Maine take).
The article provides the perspectives of families who lost loves ones. They are upset about the new process and indicate that it lacks transparency, is too lengthy, and fails to hold officers accountable. Interestingly, there has been a shift in perceptions among two camps over the past four years. Activists, who once championed the change and were enthusiastic about the new law, are now upset. Police union officials, who once denounced the new process, are happy.
I was asked to weigh in on the topic from lead author Riley Yates. When doing some digging in preparation for our interview, I noticed a few things. Here are my thoughts, and they apply to independent or special prosecutors broadly (not necessarily specific to the NJ law):
1) We know VERY little about the impact of independent or special prosecutors on investigations into and charging behaviors in cases related to American police. A cursory search only produced law review articles, which tend to be theoretical in nature. I could not find any empirical research.
This is understandable since it is unclear to me how one would possibly test the impact on investigations and charging (or lack thereof). For instance, it is incredibly rare for a police officer to be charged with murder/nonnegligent manslaughter or a less culpable (i.e., involuntary) offense in a deadly force or fatal encounter. The base rates are low nationally – let alone if we are focusing on a state or two at a time. One can take a look at places that have made changes, such as moving investigations from county prosecutors to the state’s attorney general, and examine any differences before and after. Fortunately for researchers, there is the Henry A. Wallace Police Crime Database housed at Bowling Green State University: a project created by Professor Philip M. Stinson. It includes “summary information on 15,200 criminal arrest cases from the years 2005-2017 involving 12,465 individual nonfederal sworn law enforcement officers, each of whom were charged with one or more crimes.” Connecticut made their changes into police investigations in 2012 – allowing for ample time both before and after. Still, upon a search throughout the state for “murder and non-negligent manslaughter” and “negligent manslaughter”:
1 officer was charged with murder and non-negligent manslaughter in 2006 (acquitted).
4 officers were charged with negligent manslaughter: one in 2007 (no case disposition reported), another in 2009 (acquitted), one in 2010 (off duty; convicted), and one 2012 (convicted).
You can see how difficult it is going to be to test this type of police reform in any meaningful way.
2) I am starting to become skeptical that independent/special prosecutors will result in any major changes, particularly when grand juries are involved in deciding to bring charges or not. Grand jury proceedings are largely secretive with very little information divulged to the public. They are black boxes and we have no clue what information jurors are presented. In rare instances, some knowledge has been shared with the public/media and we see stark differences in how prosecuting attorneys have performed.
Take the death of Breonna Taylor in Louisville as one example. Kentucky Attorney General Daniel Cameron presented information to a grand jury, which brought an indictment on just one officer – Brett Hankinson – for wanton endangerment for firing into an adjacent apartment. When explaining the lack of charges for any of the other police officers in her death, Cameron noted that the decision was “ultimately” in the grand jury’s hands. However, three of the 12 grand jurors later came forward to dispute his account. They explained how Cameron’s team limited their scope and misled them about what charges they could consider against the officers involved in Taylor’s tragic death. Each of the 3 jurors wanted Breonna Taylor’s family to know they did not agree with the lack of charges against the officers. By most accounts, Cameron seemed to pass the buck and blame the lack of charges on the grand jury.
In contrast to the aforementioned case, New York Attorney General Letitia James was tasked with investigating the officers involved with the death of Daniel Prude in Rochester. Remember that this only applied because Prude was unarmed. Many signs point to the fact that Letitia James vigorously tried to pursue criminally negligent homicide charges for three officers. After nine days of testimony, a grand jury decided 15-5 to clear the officers and not indict. James secured a judge’s okay to make the usually secret material public.
Two cases where “independent/special” prosecutors seem to fall on opposite ends of the spectrum, yet the same result (albeit the one officer in Louisville being indicted for a lesser offense not directly relevant to Breonna Taylor’s death).
I am left contemplating the following questions:
What is the difference between county prosecutors and independent/special prosecutors conducting investigations if, at the end of the day, the fate of charges rests upon grand juries?
Do independent/special prosecutors do anything to improve public perceptions of fairness and transparency in the process, especially for family members and loves ones, when much of the information is shrouded in the secrecy of grand jury proceedings?
I am, however, hesitant to write off and critique it altogether. Some states are challenging the status quo and attempting to limit potential conflicts of interest by creating more “space” between the investigators and the investigated. I simple wonder if it makes much of a difference in the process.
P.S. independent/special prosecutors fall on the tail end of the spectrum between front- versus back-end accountability (see NYU’s Police Project). Much like citizen complaint review boards and most types of civilian oversight more broadly, they are inherently reactionary and after-the-fact investigations when a critical incident has already occurred. I am more inclined to put more eggs in the front-end accountability baskets to try to reduce the likelihood of critical incidents from happening in the first place: strong administrative policies/practices and internal controls, innovative and effective training, etc. to create a culture of organizational accountability before things go wrong.
The “criminalization of poverty” is a phrase that has commonly been thrown around in progressive and social justice circles for quite some time. At face value, this term explains a process of invoking the formal criminal legal system, specifically the use of fines/fees up to arrests, for certain actions (or inactions) related to economic disadvantage. The two most specific examples of the criminalization of poverty – in my opinion and based on the definition provided above – include the use of excessive fines/fees for vehicle traffic and safety violations (e.g., broken tail light, expired inspection/registration) and select legislation/policy decisions to combat homelessness. Issues regarding the former were blown wide open following the US Department of Justice’s investigation of the Ferguson (MO) Police Department and its municipal court system following the shooting death of Michael Brown in 2014. The investigation found: “Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations… yet, Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees.” Some cities and state legislation have essentially made it illegal – via fines and arrest – to camp out and set up tents in certain public areas. A prime example of these types of practices was the Los Angeles Police Department’s Safer Cities Initiative (SCI) under the leadership of Chief Bill Bratton as well as a bill recently signed into law in Kentucky.
Such practices and laws truly represent the criminalization of poverty – that is, punishing people for being poor. We should try to avoid them at all costs (no pun intended). Increasing the monetary fines on people who already cannot pay their original tickets (followed by issuing bench warrants for their arrest due to failure to pay) and fining/arresting people for being homeless and camping out are not sound legislative or policy decisions. One of my mentors, Mike White, wrote an outstanding response essay to the LAPD’s SCI at the time that is worthy of your attention. It’s still relevant today as jurisdictions and law enforcement organizations continue to grapple with ways of addressing homelessness by striking a balance between the interests of businesses and community members with the well-being of those forced to live on the streets.
However, efforts to combat the “criminalization of poverty” by some legislatures and prosecutors have expanded beyond the traditional, and literal, sense of the term. There have been practices across various jurisdictions by select prosecutors’ offices to either decline to criminally charge or to drop charges of offenders for low-level crimes, particularly larceny-theft. There is also a debate as to whether similar practices are occurring for more serious crimes, such as illegal possession of a firearm (i.e., Violation of Uniform Firearms Act; VUFA), although it is beyond the scope of this blog post to explore the extent to which this is happening; most District Attorney’s Offices lack the publicly available data portals necessary to rigorously evaluate these claims. The Philadelphia District Attorney’s Office, under Larry Krasner, has even stated, “We do not believe that arresting people and convicting them for illegal gun possession is a viable strategy to reduce shootings.” The recent practices of failing to prosecute people for certain crimes, namely larceny-theft but also illegal firearm possession, has morphed from the aim of reducing the “criminalization of poverty” into the “decriminalization of crime.”
There is an important differentiation here between the two concepts. Again, and to be clear, I am all for alleviating the toxic and corrupting influences of excessive fines/fees as well as removing the heavy-handed approach of brute justice system force (e.g., fines and arrests) that is sometimes used on homeless populations. But, the practice of not bringing or declining charges for a slew of low-level property and/or qualify of life crimes (up to more serious weapons offenses) is wrong and misguided. I say this not as a conservative right-winger, but as someone who falls slightly left of center politically. Holding law violators accountable by arrest through prosecution is not contributing to the criminalization of poverty. Most poor people do not resort to crime, and most poor communities are filled with law-abiding citizens who pursue their financial needs through legitimate means only. Failing to hold law violators accountable is, essentially, decriminalizing crime.
The motivation to elaborate on these ideas comes from a recent initiative out of Atlantic County, New Jersey (see below). I’m currently working with the Atlantic City Police Department (ACPD) as a research partner for on ongoing evaluation. According to police officials, the previous prosecutor did not vigorously pursue criminal charges for certain crimes like retail theft and shoplifting. This was a policy and philosophical choice, coupled with COVID-19 limitations placed on the municipal courts statewide that precluded them from issuing warrants for failure to appear. With a new acting/interim county prosecutor at the helm in Atlantic County, along with a May 2022 directive from the NJ Attorney General that resumes the use of warrants by municipal courts, this is no longer the case. It appears that the initiative had collaborative support from the local business community.
It remains to be seen what impact this new initiative will have on the Atlantic City community regarding crime, victimization, and public safety. The smart approach would be to rigorously evaluate its success or lack thereof using a number of outcome measures, including community members’ perceptions and business leaders’ level of satisfaction. Perhaps it will be a welcomed addition that stands in stark contrast to the status quo in other areas of the country that seem to not quite understand the differences between the “criminalization of poverty” and the “decriminalization of crime.” The latter has far-reaching ramifications: public perceptions of illegitimacy for the police and the broader criminal legal system due to ineffectiveness, more individuals in the community (including offenders) gaining personal and vicarious experience with “punishment avoidance” (which affect perceptions of deterrence and the certainty of getting caught), and the loss of confidence by the business community due to economic losses from crime.
Short answer: It depends on where, and we need to move beyond looking at cities as the unit of analysis.
2019 to 2020 represented the largest one-year increase in the homicide rate. Preliminary numbers from select cities are also finding that 2021 has not shaped up much better: 12 major cities are on pace to set homicide records with 6 of them breaking their own 2020 record highs.
The debate over violent crime and homicide more specifically in 2020-2021 has played out as expected. Some left-leaning organizations (e.g., CNN, The Brennan Center for Justice) have downplayed it by repeating some variation of “it’s not as bad as the 1980s/early 1990s relatively speaking.” On the other hand, conservative organizations (e.g., The Manhattan Institute) have been sounding the alarm that select cities have either surpassed 1980s/early 1990s totals or are moving eerily close to them.
The cynic in me thinks that peoples’ confirmation biases will be reinforced by each of these two perspectives. And while city-level comparisons can be instructive, I feel the need to share one of the most interesting analyses I’ve seen in the last month or so that disaggregated homicide rates over time across different police districts in Chicago (thanks to Aaron Chalfin for tweeting about it).
On December 13, Roseanna Ander – the Executive Director of the University of Chicago Crime Lab – provided testimony to the Senate Judiciary Committee’s hearing on “Combating Gun Trafficking and Reducing Violence in Chicago” (the video can be found here and her written remarks can be found here).
Ander displayed how the 2021 homicide rate in Chicago (29.6 per 100,000) is just shy of the rate in 1991 (32.9 per 100,000) (see below):
However, the aggregate homicide rate for the city as a whole tends to mask glaring and important differences across police districts. Ander then goes on to plot homicide rates across time for the four most and least violent police districts (see below and keep in mind that the Chicago PD has 22 different districts):
Homicide rates in 2020 in the four most violent districts were worse than in 1991 (113.5 per 100,000 versus 86.5 per 100,000). Disparities in homicide rates also intensified between the most and least violent districts from 1991-2020. According to Ander, “In 2020, the gun homicide rate in Chicago’s four most violent police districts was 25 times higher than in the four least violent police districts. In 1991, the rate was 13 times higher – meaning since the ‘90s, the safety gap has doubled in Chicago’s most vulnerable neighborhoods. This disproportionately impacts Black residents.”
This graph and the rates illustrated are deeply troubling. It inspired me to take a deeper dive into whether similar patterns across place hold in New York City.
Using official crime data from the New York Police Department (2000-2020) as well as historical homicide numbers (1990) provided by Peter Moskos, I created the following line graphs that plot homicide rates across NYPD precincts over time (1990, 2000-2020). Rates were standardized per 100,000 residents across each precinct based on 2010 estimates from here and here.
Similar to Ander’s work in Chicago, I plotted the city-wide homicide rates as well as the top 10 most and least violent (homicide) precincts in 2010. Here they are:
A few caveats: 1) city-wide homicide rates were standardized based on yearly population estimates from the US Census Bureau and its American Community Surveys. 2) The 87 people killed in the Happy Land fire in the 48th precinct (Bronx) in 1990 were not included in the 1990 homicide rate. 3) Precinct-based homicide rates were based on 2010 population estimates only since that was the only year that I could find (it’s a limitation, I get it). 4) Precinct 22 – Central Park – was excluded from the least violent top 10 list. 5) 1990 represents the highest yearly total for homicides in NYC on record.
The first figure shows that New York City’s homicide trends are dissimilar from those of Chicago. NYC’s homicide rates over the last few years are, thankfully, nowhere near its 1990 peak (in both the aggregate and among the top 10 most violent precincts). The second figure shows perhaps a more apt comparison between 2000 and 2020. Again, the patterns do not follow those from Chicago: 2020 homicide rates were still lower compared to 2000 – even among the top 10 most violent precincts (15.85 per 100,000 versus 17.99 per 100,000). Yet, it’s important to keep in mind that homicide rates among the top 10 most violent precincts have risen more dramatically over the last few years. The 2000-2020 comparisons also suggest that the disparities between the most and least violent precincts widened over time (similar to Chicago, but certainly not nearly of the same magnitude). In 2020, the homicide rate in NYC’s 10 most violent police precincts was 6.74 times higher than in the 10 least violent police precincts. That rate was 3.36 times higher in 2000.
I call on others to engage in similar types of analyses across time (1980s/early 1990s to present day) using smaller units of analysis (e.g., districts/precincts) in different cities. Perhaps then we can get a better understanding of if and where, geographically, homicides continue to be problematic and potentially worsening in recent years.
**2021 Edit on 1/13/22: the figures below add the 2021 homicide totals. According to NYPD’s CompStat, there were 485 homicides in 2021 (up from 468 in 2020), which raised the homicide rate city-wide to 5.51 per 100,000 (up from 5.32 per 100,000 in 2020). Similar increases were found in the top 10 most and least violent precincts in 2021. The top 10 most violent precincts’ average in 2021 was 17.41 per 100,000 (compared to 15.85 in 2020). The top 10 least violent precincts’ average in 2021 was 3.06 per 100,000 (compared to 2.35 in 2020).
Two relatively recent police shootings highlight the importance of strict administrative policies governing if/when officers can shoot at moving motor vehicles.
The first shooting event occurred on August 27, 2021 in Sharon Hill Borough, which is a Delaware County suburb of Philadelphia. Two teenagers - Angelo Ford and Hasein Strand - engaged in a gunfight at a high school football game. Three Sharon Hill police officers opened fire on a vehicle that they (mistakenly) believed was involved in the original shooting. The police gunfire struck and killed an innocent eight-year-old girl named Fanta Bility, and three others were were wounded including Fanta’s older sister. Over the past few weeks, this case has received more local Philadelphia media attention when it was learned that 1) it was police gunfire that killed Fanta, and 2) Delaware County District Attorney Tanner Rouse charged the two teens with murder in Fanta’s death. Vinny Vella at The Philadelphia Inquirer has done an excellent job writing about the case. You can read more about it here and here.
The second shooting took place on Sunday, November 21, 2021 during a Christmas parade in Waukesha, Wisconsin. A driver, Darrell Brooks Jr., drove his SUV into the parade route, which killed 6 and injured dozens more. One officer opened fire on the SUV, but eventually stopped because of the danger that the gunfire posed to others (according to the police chief). More info about the incident can be found here.
Both shootings highlight why departmental policy should be written in a way that provides officers with guidance in determining whether they should use their firearms in situations with motor vehicles. Here’s what we know:
A few big-city police departments provide explicit language that bans/prohibits officers from shooting at motor vehicles. When they do, most also provide for rare exceptions in which officers can still shoot within policy - such as whether the driver is using the vehicle as a weapon of mass destruction (e.g., apparent terrorist attack; Nice, France truck attack in 2016) or when an officer is being carried/dragged by the vehicle, cannot disengage, and there is a fear of imminent death or serious body injury from being carried/dragged.
The New York Police Department (NYPD) was the first to write such language into their deadly force policy in August 1972.
A number of professional law enforcement organizations have provided “model” policy language in recent years. They include the Police Executive Research Forum (PERF) in 2016 and a national consensus of 11 leadership organizations (e.g., International Association of Chiefs of Police, National Organization of Black Law Enforcement Executives) in 2017 and revised in 2020.
PERF’s “Guiding Principles”
11 organizations’ “national consensus policy”
The prevailing rationale behind such prohibitions includes some combination of 1) it is more dangerous to take into account what lies beyond the moving vehicle (e.g., innocent people), 2) firing into moving vehicles may have little impact on stopping the vehicle, and/or 3) disabling/incapacitating the driver may result in an uncontrolled vehicle, which could increase the likelihood of injury or death to other passengers as well as other motorists/pedestrians.
Here are few examples of agencies’ policies:
Dallas, TX Police Department
Denver, CO Police Department
New Jersey Attorney General’s Directive 2020-13, which goes into effect statewide on December 31, 2021.
According to data from The Washington Post, 4-5% of all fatal police shootings of people between 1/1/2015 and 8/14/2021 (n = 249) were classified as “motor vehicle” being the weapon used.
*Here’s what we don’t know (it’s a lot):
How many/what percentage of police agencies have policies that prohibit shooting at motor vehicles.
Whether the Sharon Hill Borough Police Department had similar prohibitions in their deadly force/firearms policy.
We need more attention paid to such policies and whether they reduce/narrow officer discretion and, thus, limit these specific occasions when police shoot. We cannot reduce all police shootings of citizens, especially in those circumstances when people are threatening officers with firearms. However, addressing police shootings at motor vehicles presents one of the few tangible areas where progress can be made (in my opinion).
I recently served as a panelist on an event for Philadelphia’s National Liberty Museum titled, “Four Paths to Better Policing: An Interactive Virtual Public Dialogue.” The purpose was to outline and debate different paths for American law enforcement moving forward: reinforcing, reforming, reimagining, and removing the police.
I was asked to speak to the “reinforce” perspective - or the idea that American police, generally, have been doing a better job in recent years/decades compared to the flaws in the profession historically. That what police need now is more support and more resources to improve the status quo (i.e., we need to “reinvest” in them).
The “reforming the police” perspective was outlined by current Baltimore Police Commissioner Michael Harrison. The “reimagining the police” perspective was provided by The Policing Project at NYU Law’s Chief of Staff Maureen McGough. And the “remove the police” perspective was expressed by Devren Washington, who is a community organizer, Senior Policy Organizer at Movement Alliance Project, and the President of the Community Advisory Committee under MacArthur’s Safety and Justice Challenge.
Here are my thoughts on “reinforcing/reinvesting” in police:
“We’re at a critical inflection point in the history of American policing where what do will have ramifications for crime/public safety and police-minority community relations moving forward. I’ve started to worry whether the narrow window for meaningful, crisis-driven police reform – in the form of political will and bipartisanship has closed – from where we were in the summer/fall of 2020. A rise in crime/violence coupled with a hyper-partisan political environment and candidates for office that pit police accountability and public safety against one another has threatened common sense changes to policing that most reasonable people can agree on. The same debates rage on from district attorney to city council, mayoral and gubernatorial races. These dynamics have played out not only in Philadelphia but in communities across the country.
My central message is 1) there needs to be some acknowledgement that, taken as a whole, progress has been made in American policing in the last few decades, and 2) we need to reinforce/reinvest in police in order to solve some of our biggest crises – namely problematic uses of force, especially as it relates to individuals exhibiting signs of emotional/mental distress. That police need more support and resources in the form of enhanced training, physical tools, and fairer media coverage – to name a few – in order to improve the status quo. More support has the ability to positively impact the day-to-day operations as well as the recruitment and retention of quality front-line officers, supervisors, and leaders.
I’d like to start with the caveat that policing in the 21st century is by no means perfect. Big picture, systematic impediments still exist in the form of blind spots due to the lack national reporting standards and data infrastructure. Select laws and collective bargaining agreements between unions and jurisdictions hide officers’ personnel files from public view. Some allow departments to purge records of citizen complaints and uses of force after a certain amount of time. Across agencies, there is variation in the strength and guidance provided in policy language as it relates to governing the use of force and other discretionary officer behavior. There is evidence that ineffective supervision and disciplinary structures in some departments contribute to poor policing.
Additionally, law enforcement itself needs to do a better job acknowledging that police in America, historically, engaged in over- and as well as under-enforcement of the law against racial/ethnic minorities. They were used as the enforcement arm of discriminatory laws, such as “Black Codes” and “Jim Crow” through the 1960s. Police also failed to protect Black people from generational racial violence and lynchings from the end of Reconstruction through WWII.
POSITIVE CHANGES: However, it’s important to point out policing, in many ways, is a microcosm and reflection of the broader issues in our society: racial and economic strife, transactional police-citizen violence and a high degree of officer-involved shootings that mirrors our extraordinary level of gun violence. Problems of unaddressed and underfunded mental health and substance abuse resources, homelessness, etc. that all set the stage for police-citizen encounters every day on American streets.
If we are going to call attention to its ugly history, then we must also point out how policing has improved over the last few decades. Tremendous progress was made in diversifying law enforcements ranks with racial/ethnic and gender representation – although both have seemed to plateau. There is no question that police use lethal force far less frequently today. Changing departmental and legal standards, from once allowing officers to shoot to prevent the escape of fleeing felons, to restricting firearms in only defense of life scenarios has drastically reduced not only police shootings in general, but also racial disparities in the most controversial types of shootings where citizens were unarmed and running away. Stricter administrative policies have narrowed officer discretion and placed more restrictions on what officers can and cannot do, from use of force to when they can engage in vehicle and foot pursuits. These stricter policies, in conjunction with better monitoring and review structures within agencies, have reigned in problematic uses of firearms, OC/pepper spray, conducted energy devices/TASERS, and non-lethal force in general.
Police are also more effective in addressing crime today than they were in the past. There is plenty of evidence – recently synthesized in a report by the National Academies of Sciences, Engineering, and Medicine – that select innovative policing strategies – including hot spots policing/ directed patrol, problem-oriented policing, and focused deterrence/pulling levers – reduce crime and disorder. Such strategies work best and minimize harm when employed in surgically precise manners, like focusing on specific, micro-places and high-rate offenders. And because the biggest reductions in crime over the last few decades have been found to occur in economically disadvantaged, minority communities, the police have played an active part in limiting criminal victimization, specifically gun violence, for black and brown people disproportionately.
A number of societal transformations has expanded the role of police and what they are responsible for. Deinstitutionalization and the severe lack of quality mental health services means that it is often the police that must deal with individuals in behavior crisis. The same could be said about substance abuse problems and homelessness, among other issues. Divestment in public education for positions of guidance counselors and other professionals to address students’ social-emotional needs has led to police playing a more active role in our schools.
The model for the last few decades has been to send in the police for all of these other societal failures and problems. It has become an increasingly complex and almost-impossible job for which they are not adequately trained for and not given the appropriate tools to use. And those lack of investments in policing are evident: it’s why where here tonight discussing the role of the police.
The single best quote I’ve heard over the past year or so that describes this current dilemma comes from David Kennedy – a professor at John Jay College of Criminal Justice. In a recent commentary for The Niskanen Center, Kennedy writes, “Police aren’t first responders. They’re just the last one’s left.”
REINFORCE/REINVEST: As such, we need to reinforce the police and reinvest in the necessary tools and skills that better equip them to do the job. The first general area must be training. Both law enforcement executives and scholars tend to agree that current police training is woefully insufficient with many flaws. 90% of training focuses on honing technical skills, such as firearms, driving, and self-defense tactics, and much of the time is spent in the classroom with lecture-heavy approaches. Officers need to be exposed to more quality, interactive and role-playing-based scenarios in the academy, which must be reinforced through in-service training formats. This can be done with investments in VirTra simulators to practice different types of encounters with citizens, particularly when it comes to people in crisis – whether it be a suicidal or emotionally-disturbed person.
There are newer training curriculum designed to address deficiencies in de-escalation and communications skills and dealing with the mentally ill. They include Crisis Intervention Training or CIT, the Police Executive Research Forum’s Integrating Communications Assessment and Tactics (ICAT), and Polis Solutions T3 social interaction training. However, I’d venture to say that most police departments across the country do not receive these types of trainings, especially the formal de-escalation ones, and the status quo for CIT is to offer the training to a handful of officers in their mental health unit – similar to how a few officers were responsible for the majority of community policing efforts in the 1990s.
We need to move to a model where the majority – if not all – officers in most departments are receiving these types of trainings. And the same can be said for exposing officers to novel trainings like EPIC (Ethical Policing is Courageous) and ABLE (Active Bystandership for Law Enforcement), which are non-punitive peer intervention programs aimed to instill cultures in agencies where officers proactively place a check on their colleagues who are acting aggressively and escalating situations with citizens.
In addition to training, officers do not always have the necessary physical tools to do the job. This is perhaps best highlighted by the fatal police shooting of Walter Wallace, Jr. in Philadelphia last October. The 1-year anniversary of the incident just passed. Officers were dispatched to a disturbance where they were confronted by Wallace who had a knife. As he was told to drop the knife as he was advancing toward officers, police opened fire. They incident was captured on officer body-worn camera video and sparked almost immediate community outrage. One of the criticisms was a question as to why the officers didn’t attempt less-lethal force, such as a CED/TASER. It was later revealed that none of the officers present and not all Philadelphia Police Department officers were equipped with TASERS. This is unacceptable and borders on government negligence.
Officers also don’t receive adequate resources for their mental health and wellness. According to data from the Bureau of Labor Statistics, police in the US experience the highest rates of non-fatal assault and the 2nd most workplace homicides. But aside from the physical attacks and threats, officers consistently experience a high degree of secondary/vicarious trauma while performing their job duties. It’s an emotionally taxing profession, and such factors contribute to the deterioration of police officers’ physical and mental well-being. Although there has been some progress made in mental health awareness among law enforcement, police officers are still reluctant to seek help – and perhaps most relevant – most departments and states are deficient in formal officer wellness programs that connect officers with professionally trained clinicians who might help. This neglect leads to adverse health effects, such as decreased life expectancy, an increased risk of sickness and alarming suicide rates. In 2017, 3 times as many officers died of suicide than all other line of duty deaths combined. The lack of officer wellness/safety programs will continue to lead to problems of retention in the future, and research is starting to uncover how exposure to vicarious trauma, such as responding to a high number of suicide calls and domestic violence incidents, is a risk factor for later excessive uses of force and misconduct.
This point here is not to diminish the struggle of minority communities or stymie police reform. We need more accountability, particularly at the front-end before critical incidents take place; however, we also need to reinforce and reinvest in police at the same time. This is even more important in the current political climate that has largely provided negative media commentary on American law enforcement since the summer of 2014 in the wake of Ferguson and certainly since summer 2020.
We need fairer and more balanced coverage of current policing issues. Even the basic framing of fatal officer-involved shootings and deaths in police custody that use blanket terms like “police violence” creates a problem. Classifying all deaths at the hands of police as “police violence” is misleading and potentially divisive. According to data from The Washington Post, approximately 87% of those citizens fatally shot by police from 2015 through mid-2020 were in possession of a deadly weapon – posing a direct and immediate threat to officers. Such framing can cause a further rift between officers and the public, media, and academia. It adds fuel to the “War on Cops” narrative that the media/public/academia is “against us” and seems to be negatively affecting recruitment/hiring efforts among college students who once desired to enter the profession.
In these discussions, there is a difference between police use of force and brutality. The use of coercive force is the most defining feature of the police role. Officers must force compliance and arrest people who do not want to comply. They must defend themselves from people who are threatening and even assaultive. Not all police use of force is problematic, and there is evidence that a growing group of citizens possess unreasonable perceptions of police use of force. Unreasonable because their opinions of the use of force are incompatible with the legal and professional standards that serve as the evaluative tools to determine if force is justified and within the bounds of the law and departmental policy.
Not to mention how, according to Gallup polling, public confidence in law enforcement dipped in June 2020 even further than post-Ferguson levels, with a 27-year record low. These perceptions lead officers to believe that the general public does not understand them or their job, according to surveys from the Pew Research Center, which ultimately is a blow to their perceptions of audience legitimacy. We still don’t fully understand the long-term implications of the negative media attention and officers’ perceptions of audience illegitimacy.
Broad, societal changes are needed to narrow the disconnect and social distance between the law enforcement community and segments of the public, media, and even academia.”
Civilian oversight of the police is front and center in the state of New Jersey. The city of Newark had tried to establish its Citizen Complaint Review Board (CCRB), which granted the oversight body with subpoena power. The city was subsequently sued, and litigation went all the way up to the NJ State Supreme Court. In a nutshell, the state supreme court ruled that Newark’s CCRB in its current form, particularly having subpoena power, violated NJ state law. A more comprehensive overview of these events is provided here. As a result, there is a proposed bill, A4656, in the NJ Assembly’s “Community Development and Affairs” Committee. The full-text bill can be found here.
On Wednesday, March 17, 2021, I provided testimony for the bill. Those providing testimony were granted 2-minutes each, which is a woefully insufficient amount of time to discuss complex topics. I needed to amend my testimony to abide by the time constraints. If I had more time, this what I would have said:
“Thank you, chairwoman. My name is John Shjarback, and I’m an assistant professor of criminal justice at Rowan University. I’m a policing scholar and I’ve conducted research and published on issues of use of force and accountability. I’ve partnered with a number of law enforcement agencies to help them evaluate various programs, policies, and efforts. I’d like to spend my time talking about civilian oversight more broadly and I’ll refer to specific areas of the proposed bill and application in the state of New Jersey where I can. I’m here to offer support for Assembly Bill 4656 with a few cautionary notes.
Civilian oversight/review boards are necessary. In fact, it was discouraging to hear the NJ State Supreme Court rule that the Newark civilian complaint review board could not have subpoena power in the summer of 2020. Without subpoena power, such entities would be rendered useless. They would be symbolic in name only without any real power or bite to conduct worthwhile, independent investigations. Civilian oversight bodies across the country have subpoena power, and there’s no reason why NJ can’t be the same.
While civilian oversight is necessary and a step forward, I must caution that the mere existence of them is likely insufficient for the true police reform that most people are looking for. That’s because accountability mechanisms are not created equally and vary on spectrum on what The Policing Project at NYU School of Law calls “front-end versus back-end accountability.”
Front-end accountability includes strong policies and practices to create a culture of organizational accountability before things go wrong, while the back-end measures reflect after-the-fact, reactionary methods for holding individual officers responsible for their misdeeds. Civilian oversight can be best categorized as a back-end accountability mechanism, but perhaps their existence could have feedback loops to front-end accountability.
There is no “one size fits all” approach to civilian oversight. Models of civilian oversight bodies vary widely in structure, purpose, composition, and jurisdiction. Some have paid positions, whereas others have elected or volunteer positions; some have independent investigatory powers, while others simply monitor complaint investigations conducted by internal affairs units. Some oversight agencies have a narrow focus, exclusively reviewing complaints that citizens have lodged against officers, whereas others also handle officer complaints initiated by supervisors in addition to reviewing select critical incidents (e.g., use of force or officer-involved shootings). There are also oversight agencies that play a more pivotal role in reviewing, analyzing, and monitoring aggregate organizational policies, practices, training, and systemic conduct. They fall into three broad categories: investigation-focused, review-focused, and auditor-/monitor-focused.
The diversity of such models is a strength – given that each jurisdiction can try to match the organizational characteristics of a model to the needs and resources of their particular jurisdiction – but it also limits the ability to conduct rigorous evaluation research.
The proposed bill’s main strength is its subpoena power. This not only applies to compelling witness testimony, but also capturing other evidence from surveillance and CCTV footage.
In terms of weaknesses, however, the bill limits the civilian review boards in that they will only be investigating actions/events that enter through civilian complaints as opposed to broader efforts that investigate officer and supervisor complaints brought about against fellow officers as well as critical incidents (e.g., use of force, OIS). For example, in some civilian review boards officers and immediate supervisors can bring a formal complaint against a fellow officer for any host of reasons – such as excessive force, improper conduct, harassment - provided that it falls within the purview of oversight body. This may be done, either in lieu of or in conjunction with a formal complaint to Internal Affairs, due to fear of retaliation or a perceived lack of efficiency with the current Internal Affairs process.
The bill is also written in a way that each municipality will have the same exact structure (e.g., at least seven volunteer members appointed by the mayor or chief executive of the municipality) even though we know not every jurisdiction will have the same resources and organizational commitment.
There is also a point of contention in the bill as it is currently written that allows for the civilian complaint review board to conduct a parallel/concurrent investigation alongside an Internal Affairs investigation. The ability – whether that be the police department or a civilian complaint review board – to acquire evidence decreases after a significant period of time. Witness recollections of an incident are likely to diminish or they may lose interest in participating. Subpoena power is a powerful tool used to compel testimony and evidence from witnesses outside of the police department. Significant delays in the civilian complaint review board’s ability to compel CCTV (closed circuit television) and surveillance footage from businesses or private homes (think Ring and SimpliSafe doorbell cameras) may result in the loss of evidence that can used to inform the investigatory process.
I also have concerns about who will staff the civilian boards and the level of training that the members will receive. They must be properly staffed with adequate training into the frameworks to be used to evaluate complaints. There is already going to be an inherently adversarial relationship between departments and their respective civilian complaint review board. Police use of force is complex and decisions regarding the appropriateness of that force must be assessed using federal and state case law, the New Jersey Attorney General’s directives, and departmental policy. If those standards aren’t used and the civilian complaint review board makes a determination about a use of force incident that relies on public perception or a “community standards” model, then it will lose legitimacy in the eyes of officers/department (if it had any to begin with).
There’s also a section in the bill: “g. Notwithstanding any provision of P.L.1963, c.73 (C.47:1A-5 1 et seq.) to the contrary, all records made, maintained, or kept on 6 file by a civilian review board pursuant to P.L. , c. (C. ) 7 (pending before the Legislature as this bill) shall be confidential 8 and unavailable to the public while an investigation is pending, and 9 all personal identifying information contained in all records made, 10 maintained, or kept on file by a civilian review board pursuant to 11 P.L. , c. (C. ) (pending before the Legislature as this bill), 12 including in any reports issued pursuant to subsection f. of this 13 section, shall be confidential and unavailable to the public.”
I could be reading this wrong, but I do hope the final bill allows the civilian complaint review board to make these decisions/findings publicly available. Officers’ names and other personally-identifiable information should be redacted, but the findings/decisions/recommendations of each investigated case should be posted in an effort towards transparency. Many oversight bodies across the country do a great job with making such records available to the public on the Internet. The Office of Police Complaints for the Metropolitan Police Department of the District of Columbia is a prime example:
https://policecomplaints.dc.gov/page/complaint-examiner-decisions
Additionally, the civilian review boards proposed appear to be taking the form of investigator- and review-focused models as opposed to the auditor/monitor focused version, which is much more comprehensive that evaluates policies and practices rather than just individual citizen complaints against a specific officer(s).
Existing research, particularly from the National Association for Civilian Oversight of Law Enforcement (NACOLE), has identified 12 core elements of successful oversight agencies, at least to the extent we can draw such conclusions:
• independence,
• adequate jurisdictional authority,
• unfettered access to records,
• full cooperation,
• access to law enforcement executives and internal affairs staff,
• support of process stakeholders,
• adequate resources,
• public reporting/transparency,
• use of statistical pattern analysis,
• community outreach,
• community involvement, and
• respect for confidentiality.
The more of these elements that are present, the higher likelihood of success they’ll have. For example, more effective oversight agencies have been found to have adequate resources, subpoena power, and better access to records, executives, and internal affairs staff. Auditor-/monitor-focused models have been identified as being the most effective, followed by investigation-focused models, with review-focused models as the least effective.
It is important to keep in mind that success of the civilian review boards will likely be contingent on organizational commitment/resources of each individual entity. They are step in the right direction, but due the nature of them being more back-end/reactionary, they will need to be coupled with other much needed, often neglected front-end measures.
Thank you for your time and attention.”
The bill advanced out of the Community Development and Affairs committee (see below), and will be moving forward. I’ll be curious to see how it progresses and what changes/amendments are made to it. For those interested in civilian oversight more broadly, I encourage you to visit the preeminent authority on the topic: the National Association for Civilian Oversight of Law Enforcement (NACOLE) here.
Comparing the Composition of Obama’s “Task Force on 21st Century Policing” to Trump’s “Commission on Law Enforcement and the Administration of Justice”
Following Ferguson and the civil unrest from a number of high-profile deadly force incidents in the latter half of 2014, Barack Obama convened the President’s Task Force on 21st Century Policing. Holding meetings/sessions in 2015, it represented the first national-level commission dedicated to issues of American policing since the 1960s. The Task Force, with its final report that can be found here, ultimately arrived at 6 pillars that needed to be addressed: “building trust & legitimacy”, “policy & oversight”, “technology & social media”, “community policing & crime reduction”, “training & education”, and “officer wellness & safety.” Select departments across the country began using the pillars and recommendations as a blueprint for improving their organizations, even posting their progress on agency websites.
Less than five years later, another presidential task force was created. This time it was Donald Trump and Attorney General Bill Barr’s turn. However, Trump and Barr’s commission has been marred by controversy. At least two members resigned from the commission in protest, including Ramsey County (Minnesota) District Attorney John Choi and Wyandotte County (Kansas) District Attorney Mark Dupree. In his letter of resignation, Choi stated, “it is now patently obvious ... that this process had no intention of engaging in a thoughtful and open analysis, but was intent on providing cover for a predetermined agenda that ignores the lessons of the past, furthering failed tough-on-crime policies that led to our current mass incarceration crisis and fueling divisions between our communities and our police officers.” Dupree echoed similar concerns, stating that he believed the commission’s work was “smothered by a pernicious political agenda.”
When the commission was set to release its draft report in the early fall of 2020, a federal district judge (John Bates – a George W. Bush appointee) ruled that the Trump administration must delay the release since it violated the Federal Advisory Committee Act (FACA), which requires that committees be “fairly balanced” in the viewpoints represented. You can read the full ruling here. Judge Bates went on to state: “The Commission’s function is to improve policing, including relations between law enforcement and the communities they protect. Yet the Commission does not include a single member who represents elements of those communities, rather than law enforcement.” He continued: “Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.”
A federal judge has since ruled that the commission’s report can move forward with its release as long as it includes a disclaimer/statement that FACA was violated and the commission was not fairly balanced. According to Miriam Krinsky, Executive Director of Fair and Just Prosecution, the “strong disclaimer will be a clear message to all of the lack of legitimacy reflected by a process that blatantly ignored federal law.”
The Trump/Barr Commission on Law Enforcement and the Administration of Justice’s draft report was released in November 2020. It can be found here. The disclaimer at the beginning reads, “Although the Commission which prepared this Report was subject to the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2, a United States District Court judge has found that the Department of Justice (“DOJ”) and the Commission’s officers violated FACA in forming and operating the Commission. In particular, DOJ and the Commission did not comply with FACA’s requirements to ensure the Commission’s membership is fairly balanced in terms of the points of view represented, file a charter, select a designated federal officer, or provide timely notice of meetings in the Federal Register. For additional detail, the remedial order of the United States District Court that issued this decision is attached to the Commission’s Report.”
In light of these developments, I set out to explore the composition of members and those providing testimony in listening sessions in both Obama’s and Trump’s/Barr’s efforts. I quickly, and I mean quickly (I did this for “fun”), examined the lists of participants and their official titles/backgrounds and coded them accordingly. Most were easy to code, as they neatly fit into distinguishable categories: current/former law enforcement, researchers and academics/professors, representatives from civil rights/community organizations, district attorneys/prosecutors, and so on. A few were more difficult and I made a judgement call (those in question are denoted later with asterisks). The pie charts below represent what I found.
There were some stark contrasts between Obama’s Task Force on 21st Century Policy and Trump/Barr’s Commission on Law Enforcement and the Administration of Justice. Obama’s Co-Chairs and Members did have more of a balance between practitioners, researchers, and representatives from civil rights/community organizations. On the other hand, the concerns of Judge Bates, among others, are evident. Trump’s/Barr’s commissioners are exclusively current/former law enforcement and District Attorneys/prosecutors.
I did the same thing for the composition of people providing testimony in the listening sessions.
Here, the differences between the two efforts are not as pronounced. There is some representation from both researchers/academics/professors and civil rights/community organizations in Trump’s/Barr’s commission; however, it is below the representation provided by Obama’s Task Force.
I thank Ryan Reilly at The Huffington Post for consistently reporting about these developments. For those interested in reading more, please consult the following link.
Here is where I found the information on the Co-Chairs and Members, Commissioners, and those participating in the listening sessions:
And here is my coding of both federal efforts (asterisks denote difficulty coding):
Obama’s Co-Chairs & Members (n = 11)
Current/former LE, practitioners (n = 5; 36%): Ramsey, Alexander, Rahr, Smoot, Villasenor
Researchers/Research Orgs, Academics, Law Professors (n = 2; 18%): Robinson, Mears
Civil Rights, Community Orgs, Community members (n = 4; 36%): Lopez, Packnett, Rice, Stevenson
Obama’s Public Listening Sessions (n = 121)
Current/former LE, practitioners (n = 52; 43%): Beary, Canterbury, Peralta, Stanek, McHale, Medlock, McDonald, Primas, Beck, McCarthy, Monroe, Whent, Aziz, Harrell, O’Connor, Miller, Rainey, Van Houten, Cohen, Talucci, Aden, Batts, Blackwell, Magnus, Melvin, Bethel, Thomson, Turner, Crawford, Smith, Ciechanowski, Johnson, Tucker, *Winegar, *Danielson, Ortolano, Schofield, Flynn, Hutchens, Jacobs, Layton, Lipman, Orr, Castor, Demings, Eastman, Bryant, Thompson, Magaw, Pasco, Smith, McDonnell,
Researchers/Research Orgs/Academics/Law Professors (n = 30; 25%): Eberhardt, Ogletree, Tyler, Walker, Alpert, Wexler, Bueermann, Keesee, *Lewinski, White, Spiker, *Stevens, *Geller, Jones-Brown, Rosenbaum, Skogan, Kennedy, Hansford, Decker, *May, Scrivner, *Brown, Duport, Miller, Ramey, Violanti, Goff, Nagin, Sherman, Travis
Civil Rights/Community Orgs, Community members (n = 31; 26%): Perez, St. Germain, Winkler, Ifill, Kumar, Murphy, Reddy, Robinson, *Buchner, Charney, Brown, Gorenberg, Miller, Grewal, McKesson, Jones, Brown, Coleman, Gonzales, Luckey, Peart, Reynolds, Bones, Fowler, Harley, Ritchie, Sarsour, Friedman, *Serpas, *Floyd, Bernhard,
DA/prosecutors (n = 3; 2%): Gill, *Schrier, Zakhary,
Politicians (mostly mayors) (n = 4; 3%):Johnson, Nutter, Rawlings-Blake, Freeman-Wilson,
Other (n = 1; 0.8%):Scott Greenwood (Attorney)
Trump/Barr Commissioners (n = 18)
Current/former LE, practitioners (n = 12; 67%): Keith, Bowdich, Clemmons Jr., Evans, Frazier, Gualtieri, Hawkins, Lombardo, Ramsay, Rausch, Samaniego, Smallwood
Researchers/Research Orgs, Academics, Law Professors (n = 0; 0%)
Civil Rights, Community Orgs, Community members (n = 0; 0%)
DAs/prosecutors(n = 6; 33%): Sullivan, MacDonald, Moody, Parr, Price, Washington
Trump/Bar Working Groups/Testimony (n = 182)
Current/former LE, practitioners (few = broader: probation, corrections): Gross, Nooner, Yoes, Faris, Casstevens, Juday, Martin, McMahon, Shimko, Barnes, Penzone, Brown, Redd, Sena, Koutoujian, DeLacy, Blasher, Skinner, Anderson, Thomson, Chittum, Neudigate, Hart, Mateo, Hawkins, Jones, Cohen, Stirling, Craig, Ruocco, Partridge, Amon, LeValley, Roessler Jr., Kauffman, Louderback, Newman (chief of security-school), Canady, Waybourn, Lemmer, *Lowden, Hardy, Brown, Wetzel, Sanders, Perkins, Johnson, Cunningham, Bourgerie, Bradshaw, Brueggemann, Johnson, Napier, Harrison, Moir, Keller, Letteney, Dannels, Glick, Lake, Rourke, Blake, Denke, Blasher, Ranalli, Sult, Kruithoff, McDonnell, *Serpas (can also be researcher-Loyola U), White, Gabliks, Chitwood, Register, Adkinson, Hughes, Bourgeois, Niski, Gualtieri, Stawinski, Brown, Cosme, Young, Acevedo, *Marvel (PORAC), McHale, Cook, Slaughter, (n = 87; 48%)
Public defenders: Burkhart, Wilson, Martinez, Martinez (n = 4; 2%)
Judges: Lilly, Irwin (Judge, juvenile court) (n = 2; 1%)
Researchers/Research Orgs, Academics, Law Professors (n = 24; 13%): King, Robinson, Humphreys, *James (NAMI), *Gamette (forensics), Garrett, Bruegge (Physical Scientist), *Hounakey, Koufos, Duwe, *Wright II, Sheer, Yankowski, Alpert, Cordner, MacDonald, Engel, Mangual, Heriot, Turley, Fridell, Klinger, *Pannell (Director, Police Training & Edu-LAPD), Sheppard,
Civil Rights, Community Orgs, Community members: Bernard, Gonzalez, Bilyeu, Griffith, Alexenko, Clark, Davis (superintendent-school), Iorio, Salem, Phipps, Clark, Johnson, Guy, Khalif, *Hutson (President-NACOLE), Guardiola, Gilzean, Hayes-Greene, Turner, Harrison, Hutchins, Ballabon, Moline, Shareef, (n = 24; 13%)
These = LE-related groups: Solomon, McCarthy, Samuels, Castellano (n = 4; 2%)
Unknown/difficulties to code (public officials?) (n = 6; 3%):Snook, *Ashmen (hearing 2, part 2); *Brinkman (Director of the Office of Criminal Justice Programs, Tennessee Department of Administration and Finance); *Allis (National Congress of American Indians); *Addington (Director-B of Indian Affairs); *Korthuis (Association of Village Council Presidents); *Reimer (Nat Association of Criminal Defense Lawyers)
DAs & US Attorneys (AGs) (n = 28; 15%): Patterson, Marbut, Fox, Stuart, Herdman, Nelson, Terwillinger, Sini, Hertel, Vance Jr., Mosler, Jinks (DOJ Office of Legal Policy), Kyker, Pak, Parsons, Laurenz-Bogue, Schroeder, Shores, Alme, Dunn, Rutledge, Olsen, Blodgett, Meese III., Mukasey, McSwain, Scott, Trutanich,
Medical Doctor (of PDs) (n = 3; 2%): Coyne, Eastman, Miller,
I recently gave a talk titled “Acknowledging the shared history of police-minority community relations: A review of the past with a look towards future reconciliation” at the the University of Texas at El Paso’s (UTEP) “Justice on the Border: Scholarship on the experiences of marginalized groups in the US justice system” event. It was a virtual conference hosted on October 9, 2020. A link to my presentation can be found here.
The information presented in the talk was a culmination of my thoughts, discussions with friends/family, and research/readings from summer 2020 in the wake of George Floyd and Breonna Taylor. An annotated version of the talk (with References and links) can be found here.
It is my hope that the talk can be used as a springboard for further discussions to bridge the gap between police and the community.
*I’d like to thank Natalie Todak (@naturally_crime) and Obed Magny (@DrObedMagny) for reading and providing feedback on a previous version of the speech.
