Legitimacy and Lawful Policing
Abstract and Keywords
This article is organized as follows. Section I focuses on the concept of police legitimacy, exploring it from the police agency perspective (i.e., why people obey the authority), and presents the empirical findings on legitimacy. Section II discusses what happens when police officers cross the line that separates legitimate and illegitimate conduct. Section III analyzes traditional and novel responses to the situations in which policing went wrong, including internal mechanisms (e.g., internal affairs, early warning systems), external mechanisms (e.g., criminal courts, independent commissions), and mixed mechanisms of control and accountability (e.g., accreditation, citizen reviews). Section IV reflects on the key issues and provides ideas for future research.
Policing carries with it the legitimate right to use coercive force (Klockars 1985, 12). At the same time, it is a highly discretionary activity, routinely performed outside of the supervisor’s site, before witnesses who would lack credibility in court, or before credible witnesses unwilling to talk. Thus, policing is rife with opportunities for unlawful conduct. Traditionally, the lawfulness of police actions is evaluated against legal rules, be they constitutional rules (e.g., Fourth Amendment to the US Constitution), laws (e.g., Section 1983 lawsuits, 1983 42 U.S.C. §1983 ), or decisions by the highest court of the land (e.g., Miranda v. Arizona, 384 U.S. 436 ), as well as against administrative standards (e.g., Standard Operating Procedures, Rules of Conduct) established by the society at large and by individual police departments. Various mechanisms of control and accountability have been put in place to evaluate whether, and to what extent, police officers cross the line. At the same time, ultimately, it is the public that evaluates police officer conduct. Compared to judgments about legality of police actions, public perceptions about the legitimacy of the police and their actions are subjective in nature; they truly lie in the hearts and minds of the public (National Research Council 2004, 291).
This article addresses a wide range of related literatures, from which a number of important generalizations can be distilled:
• Personal moral values influence whether people will obey the law and the instructions provided by the authority. Empirical research shows that people’s views about the legitimacy strongly influence their willingness to (p. 578) obey the law. Well-publicized critical incidents of police misconduct have both short- and long-term effects on several measures of legitimacy (citizens’ level of confidence in the police; citizens’ willingness to obey the law). The effects of these critical incidents are not uniformly distributed across all racial and ethnic groups.
• Perceptions of police legitimacy are not static. They are influenced by personal experiences with the police. Personal experience, in turn, is evaluated through the general views about police legitimacy. Research indicates that citizens expect the police to treat them fairly, both in terms of the outcomes and, even more importantly, the procedures, particularly when the nature of the contact with the police is negative.
• Numerous studies have shown that African American citizens are less supportive of the police than white citizens are. African Americans are more likely to evaluate their contact with the police negatively and experience less satisfactory treatment. Research has documented that race and personal experience are the strongest predictors of negative attitudes toward the police.
• Although various legal rules and norms regulate police work, policing as an occupation requires a substantial degree of discretion, which creates opportunities for the police to engage in various forms of misconduct, ranging from the use of excessive force to police corruption. For a host of reasons, current measures of prevalence of police misconduct may be regarded, at best, as crude estimates of the actual prevalence of police misconduct.
• Societal reaction to police misconduct relies on various types of mechanisms of police control and accountability, from the internal ones (e.g., administrative rules, internal investigations), to the external ones (e.g., criminal courts, independent commissions), as well as mixed mechanisms (e.g., citizen reviews, accreditation). Research emphasizes that each of these mechanisms plays a critical role but, at the same time, points out certain problems associated with the application of these mechanisms toward effective control of misconduct and enhancement of accountability. Although largely understudied, the most promising novel mechanisms of control and accountability include the CompStat, early warning systems, police monitors, and pattern-and-practice lawsuits.
This chapter is organized as follows. Section I focuses on the concept of police legitimacy, explores it from the police agency perspective (i.e., why people obey the authority), and presents the empirical findings on legitimacy. The section proceeds with an analysis of legitimacy from the public’s perspective, reviews empirical studies concerning the effect of the actual experience with the police, and analyzes the related racial differences. Section II discusses what happens when police officers cross the line that separates legitimate and illegitimate conduct. It describes police (p. 579) corruption, use of excessive force, and racial profiling, with a particular emphasis on the potential causes of such behavior and the results of empirical studies seeking to measure their prevalence. Section III analyzes traditional and novel responses to the situations in which policing went wrong, including internal mechanisms (e.g., internal affairs, early warning systems), external mechanisms (e.g., criminal courts, independent commissions), and mixed mechanisms of control and accountability (e.g., accreditation, citizen reviews). Section IV reflects on the key issues and provides ideas for future research.
I. Police Legitimacy
The National Research Council (2004, 291) defines police legitimacy as “the judgments that ordinary citizens make about the rightfulness of police conduct and the organizations that employ and supervise them.” Literature on legitimacy (e.g., Tyler 1990; Tyler and Darley 2000; Tyler and Huo 2002) discusses three models of motivation for people to obey the law.
The first is the deterrence model or the instrumental model (Tyler 1990; Tyler and Darley 2000). This model postulates that individuals calculate potential gains and losses before they decide whether they will obey or violate the law. This model of human motivation, viewed as the rational-choice theory (e.g., Blumstein, Cohen, and Nagin 1978; Paternoster 1989) or social control model or deterrence (e.g., Zimring and Hawkins 1973; Paternoster and Iovanni 1986; Paternoster 1989; Nagin and Paternoster 1991), is the one guiding the American legal system (Tyler and Darley 2000, 712). Although the deterrence model has been supported by a number of empirical studies (e.g., Paternoster and Iovanni 1986; Paternoster 1989; Nagin and Paternoster 1991), the deterrent effect is not strong. For example, MacCoun (1993, 501) reports that the perceived severity of punishment explains only 5 percent of the variance in drug-use behavior. On the other hand, research reports that certainty of punishment has more deterrent potential (e.g., Paternoster and Iovanni 1986; Paternoster 1989; Nagin and Paternoster 1991).
The second model of human motivation to obey the law relies on personal moral values about appropriate or ethic conduct that rest on “the belief that following the rules is the morally appropriate thing to do” (e.g., Tyler and Darley 2000, 714). When the laws or decisions by the authority correspond with the moral beliefs held by the individuals, these individuals will voluntarily obey the law and respect the decisions because they share the belief that this is a morally right thing to do. Research suggests that the degree to which the individuals assess that the law overlaps with their own moral values directly affects whether they obey the law (e.g., Tyler 1990; Robinson and Darley 1995; Tyler and Darley 2000; Sunshine and (p. 580) Tyler 2003). In reality, congruence between the legal norms and the moral values of various groups of citizens is not perfect, at least for some laws (e.g., laws prohibiting prostitution, euthanasia drug laws) and some decisions (e.g., Roe v. Wade 410 U.S. 113 , declaring the right to abortion; Brown v. Board of Education of Topeka, 347 U.S. 483 , ordering desegregation). In such instances, when citizens feel that the laws are morally unjust, their own moral values could lead them to disobey the law. Thus, as Tyler and Darley (2000) argue, the reliance on moral values could result in either the promotion or undermining of the rule of law.
The third model is the social-psychological model. It relies on the belief that authorities are viewed as legitimate and thus should be obeyed (e.g., Tyler and Darley 2000). Individuals who obey the law do so not because they think that the laws are morally right but because they believe that the authorities who enacted the laws or made such decisions were legitimate and thus should be obeyed (Tyler 1990, 4; Tyler and Darley 2000, 716).
When a citizen faces a dilemma and decides whether to engage in a behavior that is acceptable by his or her own moral norms but is prohibited by the law, there are two possible outcomes. If the citizen decides not to engage in the behavior because it violates the citizen’s own moral norms, the decision is primarily influenced by personal morality. On the other hand, if the citizen decides not to engage in the behavior because the law that prohibits it was enacted by the authority and should be obeyed, the decision is primarily influenced by legitimacy of the authority (see, e.g., Tyler 1990, 25). When authorities need to make potentially unpopular decisions, they rely on the fact that authority is viewed as legitimate and that it ought to be obeyed. Tyler and Darley (2000, 722) give the example of the Roe v. Wade decision (410 U.S. 113 ), in which the Supreme Court declared abortion to be a legal right. Although many citizens viewed this decision as morally wrong, they still obeyed the decision “[b]ecause they view the Supreme Court as a legitimate social institution whose decisions ought to be obeyed.” Research (e.g., Tyler 1990; Tyler and Huo 2002) shows very clearly that legitimacy—independently of other motivations—strongly influences peoples’ willingness to obey the law.
Tyler (1990, 45) measures legitimacy in two ways: as the perceived obligation to obey the law and as support for legal authorities. In two waves of his survey, Tyler (1990, 45) finds that the degree to which the respondents supported this obligation is “striking.” In fact, more than 80 percent of the respondents in both waves of the survey agreed with the following two statements: “People should obey the law even if it goes against what they think is right” and “I always try to follow the law even if I think that it is wrong” (Tyler 1990, 45). When asked specific questions about the support for the police, the respondents still showed a substantial degree of support for the police in general (e.g., more than 75 percent agreed that “I feel that I should support the Chicago police” and that “I have a great deal of respect for the Chicago police”), but indicated that they were more skeptical about the honesty of the police (p. 581) (e.g., around 60 percent agreed that “On the whole Chicago police officers are honest”; Tyler 1990, 48). Measures of obligation to obey and support are only moderately strongly correlated, suggesting that the types of the questions asked and the way they are phrased affects the results and thus the results could differ substantially across empirical studies.
A. Data on Legitimacy
The annual Gallup Poll asks a nationwide sample of citizens about their confidence in various social institutions, including the police (Gallup 2010). The data covering the period of sixteen years (1993–2009) show that the majority of the citizens show “a great deal” or “quite a lot” of confidence in the police. These confidence rates vary from as low as 52 percent in 1993 to as high as 64 percent in 2004 (Gallup 2010). A more direct measure of legitimacy considers the perceived duty to obey the law, even when the authorities’ decision or conduct violates one’s own moral norms. The National Opinion Research Center (NORC) General Social Survey (reported in Tuch and Weitzer 1997) explores the respondents’ level of approval of a police officer potential misconduct (hitting a male adult citizen). Starting from 1973, the rate of approval has been high, with about 70 percent of the respondents approving such behavior from year to year, with the lowest approval in 1991 (65 percent; Tuch and Weitzer 1997), the year of the Rodney King beating.
A limited number of studies explore the influence of a critical police incident—like the Rodney King incident—on the level of public support for the police (e.g., Tuch and Weitzer 1997; Kaminski and Jefferis 1998). The results of Kaminski and Jefferis’s study (1998) show that a televised use-of-force arrest had no efffect on any measure of the Cincinnati respondents’ overall support; its effect was limited to just one aspect of specific support (the perceptions of the police use of excessive force) and to a nonwhite subset of their Cincinnati sample (Kaminski and Jefferis 1998).
Tuch and Weitzer (1997) analyze the influence of two such high-profile incidents. In 1979 a black woman, Eulia Love, was shot and killed by two LAPD officers; the majority of the citizens (51 percent of whites, 66 percent of Latinos, and 81 percent of blacks; Tuch and Weitzer 1997, 642) evaluated the incident as a case of police brutality. According to the Los Angeles Times 1977 poll, the percentage of citizens who approved of the way the LAPD was doing its job declined in 1979 by 13 percent overall, but the effect was much stronger for minorities than it was for whites (10 percent decline for whites, 20 percent for Latinos, and 23 percent for blacks).
The Rodney King beating on March 3, 1991, videotaped and broadcast across the globe, was another such critical incident. It had a devastating effect on the citizens’ view of the LAPD. Compared to the overall approval of the way the LAPD was doing its job in 1988 (74 percent approval; Tuch and Weitzer 1997), the approval dropped to 46 percent immediately after the incident (March 7–8) and even lower, (p. 582) to its rock bottom of 34 percent, two weeks later (March 20–21). As was the case with Eulia Love in 1979, the Rodney King incident did not affect all racial/ethnic groups to the same extent. LAPD approval dropped in mid-May 1991 from the pre–Rodney King approval ratings by 33 percent for whites (from 74 percent in 1988 to 41 percent in mid-March of 1991), 49 percent for Latinos (from 80 percent to 31 percent), and 50 percent for blacks (from 64 percent to 14 percent; see Table 1, Tuch and Weitzer 1997). The overall approval approached the pre–Rodney King levels only four years later, in 1995 (Tuch and Weitzer 1997). Thus, it seems that the incidents of police misconduct publicized by the media have not only direct, short-term effects on public support for the police, but also sizeable long-term effects. In their subsequent study, Weitzer and Tuch (2006) report that serial or ongoing exposure to negative media reporting on the police was one of the most consistent factors related to public support for the police.
B. Procedural Justice
Tyler (1990, 71) argues that legitimacy should not only be explored from the perspective of legal authority but also from the public’s perspective. The traditional view—the instrumental perspective—was to assume that people evaluate the authority based on the favorability of the outcomes (Tyler 1990, 71); those individuals who receive a more favorable outcome are more likely to evaluate the authority positively (see Tyler 1990 for the overview of the studies). Whereas this perspective argues that citizens are concerned only with securing favorable outcomes for themselves (see Tyler 1990, 2000, 2001), the normative perspective of justice is based on the citizens’ perceptions of fairness and equity (see Tyler 1990, 2001). Tyler (1990, 2000) suggests that citizens’ views of justice are primarily based on the notion of fairness, both distributive justice (fairness of outcomes) and procedural justice (fairness of the procedures).
Thibaut and Walker (1975) argue that people would be more likely to accept the outcomes if they were obtained through fair procedures. The results of their study and subsequent studies (Lind and Tyler 1988; Tyler 1990; Tyler and Huo 2002) strongly confirm this notion. Although the fairness of outcomes is important, fairness of procedures is even more important. In fact, Tyler (1990, 80) reports that fairness of the procedure is the only factor that has a significant influence “on generalizations from experiences to attitudes toward legal authorities, law, and government.”
Tyler (2000, 121) elaborates on the theory of procedural justice, analyzes the data (e.g., Tyler 1990, 141), and proposes that four elements (participation, neutrality, trustworthiness of authorities, and treatment with dignity and respect) are the key factors affecting evaluations of procedural fairness. However, his analyses show that these elements are complex and that they may not matter equally for all legal settings (e.g., Tyler 1990, 142, 144–45). Participation (Tyler (p. 583) 2000, 121), or representation (Leventhal 1976, 1980), refers to the extent to which the parties believe that they have control over the process, not necessarily in terms of determining the outcome of the dispute, but in terms of being given opportunities to present their side of the story to the decision makers. Research shows that “having a voice” resonated quite positively in diverse settings, from plea bargaining (Houlden 1980) and sentencing hearings (Heinz and Kerstetter 1979) to mediation (Kitzmann and Emery 1993; MacCoun et al. 1988; Shapiro and Brett 1993), especially if the parties had the impression that their statements had a direct effect on the outcome of the case (see, e.g., Shapiro and Brett 1993). Neutrality (Tyler and Lind 1992; Tyler 2000, 122), or impartiality (Paternoster et al. 1997, 168), occurs when the decision makers do not allow personal characteristics of the parties or favoritism of one party to influence the decision and treatment during the process. Simply put, neutrality involves honesty and lack of bias (Tyler and Lind 1992, 141). Trustworthiness of authorities (Tyler 2000, 122) refers to the degree to which the decision maker can be trusted to behave fairly. Treatment with dignity and respect (Tyler 2000, 122), status recognition (Tyler and Lind 1992), or ethicality (Paternoster et al. 1997, 168), imply that evaluations of procedural fairness will be affected by views as to whether the decision makers treat the participants with dignity and with respect for their rights. Based on their empirical tests of the key elements, Tyler and Huo (2002, 195) conclude that “[p]eople’s judgments about their trust in the legal authority with whom they dealt were influenced by respect, voice, and neutrality. When people knew their outcome, they relied on respect, voice, and neutrality. When they did not know their outcome, they relied primarily on respect.”
C. Personal Experience with the Police and Police Legitimacy
Tyler (1990, 26) argues that legitimate authorities have discretion to perform their tasks and that “[the scope of legitimate authority] rests on a conception of obligation to obey any commands an authority issues so long as that authority is acting within appropriate limits.” When citizens feel that the authority is overstepping its boundaries, the level of legitimacy will decrease. In the context of policing, police agencies and individual police officers—both of whom could be characterized as having legitimacy (see, e.g., Tyler 1990, 29)—exercise discretion as a regular part of their jobs (e.g., Davis 1969). Indeed, when a police agency decides to enforce the DUI laws more aggressively or when a police officer stops a motorist for speeding, both of these situations have the potential to affect their legitimacy.
As Tyler and Darley (2000, 718) emphasize, although the roots of law-abiding culture are planted in childhood, people are also influenced in their views of authorities by adult experiences with the authorities, be they in the form of suspects, (p. 584) victims, or third parties. Tyler summarizes the findings about the influence of experience on the perceptions of legitimacy (1990, 94):
These findings confirm that personal experience with police officers or court officials affects general views about the legitimacy of these authorities and the quality of their job performance. The data also suggest that the effect of experience on performance evaluations is much stronger than its effect on legitimacy. People’s views about the legitimacy of legal authorities are more strongly insulated than performance evaluations are from the influence of a good or bad experience with police officers or a judge.
Tyler (1990, 95) further emphasizes that the effect of personal experience on the general views about legitimacy is strong and that it persists even after controlling for prior views. However, how people will evaluate their own personal experience with the police depends on what they thought about the police before the experience (Tyler 1990, 95). In that sense, general views about legitimacy lead people to attribute more positive evaluations of the actual experience, which in turn affects their general views of legitimacy. In their subsequent work, Tyler and Huo (2002) find that people who evaluate police officers as legitimate are more likely to obey their orders. At the same time, the behavior of specific police officers influences the overall level of legitimacy toward the police.
Sunshine and Tyler (2003) report that general views about the police are primarily influenced by the procedural justice variables. Whereas people base their evaluations partly on the perceptions of fairness of outcomes, unfair or disrespectful treatment by particular police officers carries substantial weight (Tyler 1990; Tyler and Huo 2002) and influences how likely both the individual who went through the experience and other people who learned about the experience are to obey the law in the future. Regardless of how trivial the reason for the interaction between the police and citizens, people generalize from their own experiences with the police and from the experiences of their friends and relatives. Unfair or disrespectful treatment leads toward less obedience (see, e.g., Tyler 1990; Paternoster et al. 1997; Tyler and Smith 1997) and more resistance (e.g., White et al. 1994; Mastrofski et al. 1996), which makes the police job more difficult in the future. Reiss’s empirical study (1971) shows that when people, both suspects and third parties, attach low legitimacy to the police, the police officers responding to calls for service are more likely to use force and the encounters are more likely to end with severe injuries to both citizens and officers.
On the other hand, Tyler and Huo (2002) point out that one encounter evaluated as unfair or disrespectful will lead citizens in the future to put more emphasis on the quality of the treatment by the authorities and less on their general views of the authority (see, also Tyler 1990, 172). Thus, experiencing unfair treatment sensitizes individuals more toward such issues, shifts the focus away from legitimacy of legal authorities to the fairness of the specific experience, and effectively undermines (p. 585) legitimacy (Tyler 1990, 172). Furthermore, Tyler and Huo (2002, 185) argue and confirm through their empirical research that the subsequent general evaluations of the authorities are more influenced by the perceptions of the quality of treatment than by their judgments about the outcomes.
Other empirical studies explored the influence of various types of contacts with the police (e.g., involuntary contacts, contacts initiated by the police, such as being arrested or receiving a traffic ticket; voluntary contacts, contacts initiated by the citizens, such as requesting police service or reporting victimization on the confidence in the police [see Decker 1981 on public evaluations of the police]). Some studies (e.g., Winfree and Griffiths 1977) suggest that involuntary contacts have a stronger effect on the public opinion about the police than voluntary contacts do. Tyler and Folger (1980) report that procedural justice is more important for the evaluation of the encounter when the contact is involuntary (i.e., being stopped by the police) than when it is voluntary (i.e., called the police for help). Moreover, whereas involuntary contacts erode the individual’s opinion about the police, voluntary contacts do not substantially improve it (Jacob 1971). Other studies (see, e.g., Carter 1985) find that, regardless of the nature of contacts (i.e., voluntary or involuntary), as the number of contacts with the police increases, the level of satisfaction decreases. Thus, it is quite possible that the nature of the contact may not have as much effect on the level of public opinion about the police as the satisfaction with, or perceived fairness of, the treatment does. Indeed, several studies confirm this conclusion (see, e.g., Correia et al. 1996; Reisig and Parks 2000). Thus, although certain types of contacts are more likely than others to generate dissatisfaction (see, e.g., Southgate and Eklbom 1984; Skogan 1996), it seems that, on average, having any contact with the police results in more negative attitudes toward the police (Yeo and Budd 2000; see also Dean 1980) because contact with the police likely will be perceived as unfair, disrespectful, or antagonistic.
The most frequently studied type of voluntary contact occurs when a person becomes a crime victim and decides to report the victimization to the police. Studies show that reporting the victimization to the police further erodes the overall satisfaction with the police (e.g., Homant et al. 1984; Kutnjak Ivković 2008). Similarly, Shapland et al. (1985, 85) report that the victims’ “lack of knowledge of what was happening to the case and, for a few, the consequent feeling that the police did not care and were not doing anything” are detrimental for the victims’ opinions about the police. Just like Tyler and Huo (2002) find that both quality of treatment and outcome favorability matter (although quality of treatment has a stronger effect), other prior studies exploring public evaluations of the police have shown that both the treatment and the outcome matter. Poister and McDavid (1978) report that the victims’ overall satisfaction with the police is related to both procedural variables (e.g., satisfaction with the response time, satisfaction with the initial investigation) and outcome variables (e.g., whether the investigation was initiated, quality of the investigation, likelihood of an arrest). The 1996 International Crime Victimization (p. 586) Survey results demonstrate that the respondents from a number of European and North American countries who were victimized and were dissatisfied with their reporting experiences attributed the reasons for their dissatisfaction to both procedural-justice issues (e.g., lack of interest in pursuing the case, impoliteness, slow to arrive) and substantive-justice issues (e.g., the offender was not caught, the property was not recovered; van Dijk 1999, 39). The results of the 1998 British Crime Survey support the same argument: Yeo and Budd (2000, 3) find that the “police received higher ratings when they: recovered all or some of the victim’s property (77 percent), charged the offender (73 percent), [and] had face-to-face contact with the victim (66 percent).”
D. Minority Views and Experiences
Since the President’s Commission on Law Enforcement and Administration of Justice (1967a) and the Kerner Commission (National Advisory Commission 1968), research studies have found that race unequivocally matters in the context of analyzing public opinion about the police: African American respondents seem less satisfied with, and less confident in, the local police than white respondents are1 (e.g., Jacob 1971; Walker et al. 1973; Hadar and Snortum 1975; Albrecht and Green 1977; Garofalo 1977; Scaglion and Condon 1980; Peek et al. 1981; Jesilow et al. 1995; Webb and Marshall 1995; Cao et al, 1996; Correia et al. 1996; Flanagan and Vaughn 1996; Huang and Vaughn 1996; Tuch and Weitzer 1997; Kaminski and Jefferis 1998; Sampson and Bartusch 1998; Weitzer and Tuch 1999, 2002; Reisig and Parks 2000, 2002).2
Divergent opinions between African American and white respondents stem from different experiences and cultural norms and expectations. The police may treat minority citizens differently, including more frequent searches (but not more frequent questioning or chasing, according to Erez 1984; Bureau of Justice Statistics 2006), stops (e.g., Weitzer and Tuch 2002), tickets (e.g., Bureau of Justice Statistics 2006), and arrests (e.g., Harris 1997; Tuch and Weitzer 1997; Bureau of Justice Statistics 2006, 2007a), all of which might induce perceptions of injustice and differential treatment. Weitzer and Tuch (2002) point out that only 5 percent of white respondents reported being stopped exclusively because of their race or ethnic background, yet the same is true for about 40 percent of black respondents, particularly young, black men. The Bureau of Justice survey of citizens stopped by the police in 2002 (Bureau of Justice Statistics 2006) shows that white and black drivers were stopped at similar rates (compared to their proportion in the US population of drivers), but black drivers, particularly young, black men, were more likely to say that the police did not give them the reason for the stop and were less likely to evaluate the stop as legitimate. They were also less likely to estimate that they were stopped for speeding, but more likely to be ticketed, to be physically searched, to have their vehicles searched (Bureau of Justice Statistics 2006), or to be arrested (Bureau of Justice (p. 587) Statistics 2007a, 6). Among the residents who had any contact with the police (not just a traffic stop), black residents were more likely to say that the police used force or threatened to use force (Bureau of Justice Statistics 2006, 9; Bureau of Justice Statistics 2007a, 8), but there were no differences in the percentages of black and white respondents who evaluated the force as excessive (Bureau of Justice Statistics 2007a, 8). Research further suggests that African Americans are more likely to see traffic stops as unjustified (Wortley et al. 1997; Bureau of Justice Statistics 2001) and to say that they are at risk of unfair treatment by the police (Huang and Vaughn 1996, 39). African American respondents typically are more likely to say that the police “are allowed to use too much force” than whites report (60 percent and 33 percent, respectively; Huang and Vaughn 1996, 40), and that they have been victims of racial profiling (Weitzer and Tuch 2002).
Respondents who perceive the police to engage in misconduct more frequently, as African American respondents do (e.g., Flanagan and Vaughn 1996; Weitzer and Tuch 2002), are also less likely to express strong support for the police (see, e.g., Smith and Hawkins 1973; Dean 1980; Benson 1981; Soo Son et al. 1997; Tuch and Weitzer 1997; Weitzer and Tuch 2002). Weitzer and Tuch (2002) identify race and personal experience with police racial profiling are the strongest predictors of attitudes toward the police.
II. Police Misconduct
Police agencies and police officers enjoy substantial discretion in the performance of their duties (Davis 1969). In addition to the federal and state statutes, the US Constitution serves as the springboard to evaluate the legality of police actions and the way they exercise discretion. Police officer discretion is also channeled by court cases, both criminal and civil, as well as the police agency’s administrative rules. Still, some police officers cross the line, violate the rules, and engage in police misconduct. Legitimacy is a characteristic of both police agencies and individual police officers, and they can enhance it or undermine it. One way of undermining is to engage in police misconduct (line officers) or to allow misconduct to flourish in the police agency (supervisors).
A. Police Corruption
Police corruption is a form of police misconduct typically defined through the motivation to achieve personal gain (e.g., Sherman 1974; Goldstein 1975; Barker and Carter 1986; Klockars et al. 2000). It may involve a violation of the laws, police agency’s internal administrative rules, and/or the codes of ethics.
(p. 588) In their joint work Barker and Roebuck (Barker and Roebuck 1973; Roebuck and Barker 1974) point out that corruption takes many forms. Based on several dimensions (e.g., acts and actors involved, norms violated, support from peer group, organizational degree, police department’s reaction), they specify eight types of corruption: corruption of authority (which incorporates the acceptance of gratuities), kickbacks, opportunistic thefts, shakedowns, protection of illegal activity, the fix, illegal criminal activity, and internal payoffs. Punch (1985) added “flaking” or “padding” of evidence as the ninth type of corruption, which, according to Punch, typically is evident in drug-related cases. In a nationwide study of more than 3,000 police officers from thirty diverse US police agencies, Klockars et al. (2000) find that shakedowns and opportunistic thefts were evaluated to be the most serious types of corruption in all thirty agencies, while the acceptance of gratuities—be it on a regular basis or only for the holidays—was viewed as the least serious form of corruption in all thirty agencies, with the cases of internal corruption and kickbacks lying somewhere between these two extremes. These results are very consistent with results of surveys of police officers from thirteen other countries as diverse as Croatia, Finland, Japan, Pakistan, and South Africa (Klockars, Kutnjak Ivković, and Haberfeld 2004).
1. Causes of Police Corruption
The National Research Council (2004, 271) points out that “[t]he research literature [on causes of police corruption] is long on theory and short on evidence about what causes police corruption.” Existing literature on causes of corruption could be classified into several categories.
First, some studies explore individual police officers and their characteristics (e.g., Muir 1977) or the “rotten apples” (Knapp Commission 1972). The literature tries to establish which features make police officers particularly prone to corruption (e.g., prior criminal record, weak moral values) but, at the same time, indicates that psychological screening tests are not accurate predictors of future behavior (e.g., Malouff and Schutte 1986; Talley and Hinz 1990).
Second, the literature focuses on the opportunities for corruption. Policing as an occupation is rife with opportunities for corruption (Klockars et al. 2000), with differential opportunities across various assignments, ranks, and laws that the police enforce. Detectives, particularly those assigned to narcotic units, have especially extensive opportunities for corruption (General Accounting Office 1998), as do police officers in charge of laws without moral consensus and vaguely defined laws (Knapp Commission 1972).
Third, a strand of the literature focuses on the police agency itself (“rotten barrels” or “rotten orchards,” Punch 2003) and what the police agency does to influence the contours of corruption within the agency. The effect of the police agency on corruption within the agency is multifaceted. The police chief plays one of the (p. 589) dominant roles (e.g., Knapp Commission 1972; Pennsylvania Crime Commission 1974; Goldstein 1975; Weisburd and Greenspan 2000; Kutnjak Ivković 2005), as do first-line supervisors (e.g., Knapp Commission 1972; Burns and Sechrest 1992; Mollen Commission 1994; Weisburd and Greenspan 2000) and peers (e.g., McNamara 1967; Stoddard 1974; Klitgaard 1988; Sparrow et al. 1990; Weisburd and Greenspan 2000; Chen 2003; Kutnjak Ivković 2005). In a nutshell, police agencies play crucial roles by creating systems that establish rules, enforce rules, detect corruption, and control the code of silence (e.g., Sherman 1974, 1978; Klockars et al. 2000; Kutnjak Ivković 2005;).
Fourth, some studies examine the role of the broader environment and the influence it has on the level of corruption in the police agency. By criminalizing or by failing to criminalize certain behaviors, the society at large—through its legislative branch of government—sends the message about the standards of appropriate behavior and regulates the demand for corruption (Walker 1999). By enacting the laws prohibiting corruption, but by not enforcing them or enforcing them only sporadically, the society at large communicates a relaxed view of corruption and its seriousness (Kutnjak Ivković 2005). Public expectations of the appropriate ethical behavior by all governmental employees, including police officers, guide police agencies and police officers in their conduct (e.g., Goldstein 1975; Sherman 1977; Klockars 2003). These expectations are generated as part of the local political culture; as Sherman (1977) argues, communities differ greatly in their expectations, from “communities with a more public-regarding ethos” (like Charlotte, North Carolina; Kansas City, Missouri; and Portland, Oregon) to communities with more “private-regarding” (like New York City and New Orleans). Kutnjak Ivković’s (2003, 612) study of International Crime Victim Surveys reveals that “the countries with the reputation in the international business community of being more corrupt, as indicated by a low score on the 1999 Corruption Perception Index (CPI) …, appear also to have a higher percentage of the respondents who said that they had been asked to pay a bribe to a police officer last year.”
2. Data on Police Corruption
Obtaining accurate data on police corruption is very challenging. First, in most countries legal statutes do not feature a crime specifically titled “corruption” (instead, criminal statutes prohibit behaviors such as “bribery,” “extortion,” and “theft”). The same applies to police agencies; precisely what corrupt behaviors are prohibited by internal agency rules varies from agency to agency and across time within the same agency. Second, for various reasons, neither police officers nor citizens (participants or potential witnesses) have motives to report a corrupt transaction; in fact, they have motives not to report it (e.g., Stoddard 1974; Klockars 1999; Klockars et al. 2000; Kutnjak Ivković 2003, 2005;).
(p. 590) Surveys of citizens and police officers alike are burdened with these problems and are not reliable sources of data on corruption (see, e.g., Kutnjak Ivković 2003; National Research Council 2004, 269). In addition, most of the existing surveys focus on one country and are conducted locally, usually with the purpose of surveying the population of a particular city. The results of citizen surveys provide quite a divergent picture about police corruption, from fewer than 2 percent of Caucasian respondents nationwide who perceived in the 1960s that most of the police were corrupt (President’s Commission on Law Enforcement and Administration of Justice 1967b) to 93 percent of New Yorkers in the 1990s who perceived corruption to be widespread (Kraus 1994). On the comparative front, the Gallup International 50th Anniversary Survey (1996) reports that approximately one-third of the respondents in the West European countries and Israel, and more than two-thirds of the respondents in the East European countries, the Far Eastern countries, and the Central and South American countries assessed that police corruption was widespread in their countries. Among the respondents in the International Crime Victimization Survey, about 1 percent of the respondents or fewer from Western democracies reported paying a bribe to the police, while the corresponding percentages were dramatically higher (between 10 percent and 20 percent) in some East European, Asian, and Latin American countries (Kutnjak Ivković 2003).
The official data, be they arrest rates or complaint rates within a police agency, at best reveal only the tip of the iceberg. At the federal level, there were between 83 and 150 officers convicted annually in the period from 1993 to 1997 (General Accounting Office 1998, 11). For a country with more than 600,000 officers (Bureau of Justice Statistics 2007b), focusing on these miniscule conviction rates would suggest naïvely that corruption is a minor issue. On the other hand, the Knapp Commission (1972) reports finding widespread corruption in the NYPD (the largest police agency in the country) in the 1970s. At the same time, the prosecutors filed about thirty cases of corruption annually (Kutnjak Ivković 2003), with about one-third of the police officers charged with corruption-related crimes not being convicted and, among those convicted, only one out of five receiving a prison sentence of a year or longer (Kutnjak Ivković 2003).
Similar problems could be encountered regarding the police agency’s complaint data, if they are available at all, and compared with other sources of data about corruption. Reports by independent commissions (e.g., Mollen Commission 1994; Royal Commission 1997) and the results of victimization surveys across the world (Kutnjak Ivković 2003) suggest that citizens rarely report corruption to the police, and the official agency data are severe underestimates of the extent of corruption. For example, at the time the Knapp Commission (1972) reported widespread corruption in the NYPD, the complaint rate was less than 1 per 100 officers (Cohen 1972).
The best, most detailed and accurate data come from independent commissions, but they pertain only to a specific agency, time period, and are bound by the resources and powers granted to the commission. The Knapp Commission (1972), (p. 591) the Pennsylvania Crime Commission (1974), the Christopher Commission (1991), the Mollen Commission (1994), and the Royal Commission (1997) are examples of the best-known recent commissions. Their findings illustrate the evolving and dynamic nature of police corruption. Both the Knapp Commission and the Pennsylvania Crime Commission found widespread corruption in the NYPD and Philadelphia Police Department, respectively, along with the presence of a strong code of silence. In contrast, the Mollen Commission reported that most police officers in the NYPD were honest but still found pockets of police officers aggressively seeking opportunities to obtain money and drugs.
A novel approach toward collecting data about police corruption incorporates the approach developed by Klockars and Kutnjak Ivković (2003), in which the authors measure the level of police integrity and thus alleviate the methodological problems associated with the direct measurement of police corruption. A study of thirty police agencies (Klockars et al. 2000) revealed that police agencies varied considerably in the contours of their police integrity.
B. Use of (Excessive) Force
The right to use coercive force is a defining feature of policing (see, e.g., Bittner 1970; Klockars 1985). The police use of force has been studied extensively since the 1960s, when the President’s Commission for Law Enforcement and Administration of Justice (1967a) confirmed that the allegations of use of excessive force, which ignited riots across the US cities, were legitimate. Despite intensive research activity, there is no clear consensus on what constitutes the use of force and, particularly, the use of excessive force. Typically, use of force is explored through the continuum of force (see, e.g., Desmedt and Marsh 1990), but the items on the matrix differ from one police agency to another (see, e.g., National Institute of Justice 1999).
Drawing a line between the appropriate and excessive force is even more challenging. The CALEA accreditation standards require that police officers “will use only the force necessary to accomplish lawful objectives.” Klockars (1995) argues that the line between the legitimate force and excessive force can be drawn across several standards—excessive force creates criminal responsibility, civil liability, and/or a scandal. However, Klockars (1995, 17) further points out that these standards are necessary but not sufficient to define excessive force, and that the definition should be related to the skilled police officer standard (“the use of any more force than a highly skilled police officer would find necessary to use in a particular situation”). This approach fits with the US Supreme Court standard of a “reasonable police officer” decided in Graham v. Connor (490 U.S. 386 ).
A particular kind of the use of force—the use of deadly or lethal force—is more regulated. The Supreme Court held in Tennessee v. Garner (471 U.S. 1 ) that the fleeing-felon rule, which authorized police officers to use “all the means necessary to effect an arrest,” was unconstitutional. Instead, the guidelines issued by the Court (p. 592) suggest that police officers are allowed to legitimately use deadly force only in the situations in which the suspect presents clear and present danger to himself or others (“deadly force … may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”).
1. Causes of Use of (Excessive) Force
Unlike the study of corruption, the study of the use of force has been mostly atheoretical. In general, empirical research has sought to explore which variables are related to the use of (excessive) force (e.g., Riksheim and Chermak 1993; Terrill 2001). The issue is further complicated by the fact that this literature is situated within the broader topic of police behavior and discretion. Based on the nature of the variables explored, four dominant strands of the literature have emerged.
First, some studies focus on individual police officers and their characteristics (e.g., Muir 1977). Early research in the 1960s and 1970s (e.g., Balch 1972) sought to distinguish the degree to which police officers exhibit characteristics of an authoritarian personality, which would predispose them to use (excessive) force. Although Scrivner (1994) reports finding some evidence of those characteristics among the group of police officers referred to him for their use of excessive force, the jury is still out on whether police officers indeed generally are more likely to have these characteristics and, if they do, whether they are related to the use of excessive force. Another avenue of research explored police officer value or belief system and encountered two serious problems: first, the difficulty of separating the effects of contextual and organizational variables from the attitudes and, second, respondents’ low attitude-behavior consistency. The few empirical tests conducted found very limited support for the role of individual characteristics (e.g., Worden 1995; Terrill and Mastrofski 2002). Worden (1995) reports that police officer use of force and excessive force is related to their views about citizens, but not to their views of the police role.
Second, the literature focuses on the dynamics of police-citizen encounters. Following Donald Black’s theory of law (1976), the predictions are that the police will be more likely to use (excessive) force in the encounters with citizens who have a lower status, such as minorities and the poor (see, e.g., Terrill 2001, 14). The existing research (e.g., Reiss 1967; Friedrich 1980; Worden 1995; Terrill 2001) documents that police officers are more likely to use force (and use of excessive force when included in the studies) when citizens are defiant and antagonistic (recent evidence is somewhat less supportive; e.g., Terrill and Mastrofski 2002 v. Garner et al. 2002), lower-class (e.g., Terrill and Mastrofski 2002), intoxicated (e.g., Terrill 2001), male (e.g., Mastrofski et al., 1995; Worden 1995; Terrill 2001; Terrill and Mastrofski 2002), and black/nonwhite (recent evidence is more mixed; e.g., Alpert 1989; Garner et al. 1995, 2002; Engel et al. 2000 v. Fyfe 1982; Worden 1995; Terrill and Mastrofski 2002). In fact, situational factors seem to be more relevant than individual police officer or (p. 593) organizational characteristics (see, e.g., Worden 1989; Riksheim and Chermak 1993 for reviews).
Third, a strand of the literature focuses on the police agency. Wilson’s organizational theory (1968) emphasizes the importance of the police agency’s hierarchical structure and the larger social and political environment in which the police agency operates. By establishing administrative rules, the police agency creates a certain organizational culture or common vision about how policing should be done. However, establishing the official policies is a necessary but not sufficient step. Studies exploring individual police agencies show support for this idea, particularly in the case of deadly force. Fyfe (1979) analyzes the effect of the newly implemented policy on the use of firearms in the NYPD in 1972 and shows a decrease of about 30 percent in the number of police firearm discharges. At the same time, Fyfe (1982) compares the shooting rates in Memphis and the NYPD, and explains the difference between the two cities through the differences in the extent of official rules and the activity of the internal control mechanisms. The second subset of the literature focuses on police culture and its effect on the use of (excessive) force. Police culture (see, e.g., Bittner 1970; Stoddard 1974; Van Maanen 1974; Reuss-Ianni 1983; Sparrow et al. 1990) emphasizes danger, social isolation, group loyalty, and solidarity. Although the debate is centered on whether the increased diversity and the introduction of the community policing may challenge traditional views about the police culture, there are few studies that explored the influence of police culture on the use of (excessive) force. Researchers typically assumed that the police culture includes a predetermined set of values relatively static in nature (see, e.g., National Research Council 2004, 132). Worden (1995) compares the formal effects of the organizational structure (e.g., degree of bureaucratization, emphasis on crime-fighting activities) and the informal culture on the use of force and concludes that, of these three variables, only the degree of bureaucratization is related to the use of force.
Fourth, the literature focuses on the society at large and its effects on the use of (excessive) force. The “racial threat” hypothesis proposes that, once the percentage of minorities reaches a certain proportion of the population (e.g., Liska et al., 1985), they will be perceived as a threat to the existing order and, as such, will receive a harsher treatment by the police. At the neighborhood level, research suggests that the police officers are more likely to use force in the disadvantaged neighborhoods (e.g., Reisig and Parks 2000). At the state level, research suggests that police were more likely to use deadly force in the states with higher levels of income inequality (e.g., Jacobs and Britt 1979).
2. Data on the Use of (Excessive) Force
The lack of the common definitions of the use of force and, particularly, the use of excessive force is a serious problem in the collection of data as well. Consequently, there is no nationwide data source about the extent and nature of the use of force. (p. 594) The key sources of data on the use of (excessive) force have been observational studies, surveys, police officer use of force reports, and citizen complaints, each of which features serious shortcomings.
Research indicates that the police use force rarely (e.g., McLaughlin 1992; Klinger 1995; Garner et al. 1996) and that, when police officers do use force, they typically rely on the less severe items on the use of force continuum, such as issuing verbal commands or grabbing the citizen (e.g., Klinger 1995; Garner and Maxwell 1999; Terrill 2001). Observational studies from the 1960s and 1970s (Reiss 1967; Friedrich 1977; Worden 1995) suggest that police officers had used force in fewer than 5 percent of the police-citizen contacts and had used excessive force even less frequently, in fewer than 3 percent of the contacts. More recent studies (e.g., Klinger 1995) incorporate verbal commands into the use of force as well, and find force to be used more frequently (17 percent of the time), with verbal commands accounting for more than one-third of the events.
The findings of the Bureau of Justice Statistics nationwide survey (Bureau of Justice Statistics 2001) of police-public contacts are consistent with the results of observational studies. Based on the survey of more than 80,000 people in 1999, the police officers used force, or threatened to use force, in fewer than 1 percent of the encounters with the citizens. The 2005 sweep of the survey shows that about 1.6 percent of the citizens experienced police using force or were threatened with the use of force (Bureau of Justice Statistics 2007a, 1). In about one-half of the incidents, 55 percent, the police used physical force (as opposed to verbal commands or threats to use force); when they used physical force, the police tended to use the least serious forms of physical force (they pushed or grabbed the person). The overwhelming majority of the citizens who said that they were either threatened with the use of force or actually experienced force claimed that the force was excessive (75 percent in 1999 and 83 percent in 2005).
Pate and Fridell (1993, 48) surveyed more than 1,000 police agencies, including sheriff’s departments, country police departments, city police departments, and state agencies, and asked them to provide information about the use of force reports, citizen complaints, and the litigation concerning allegations of excessive force. Whereas their findings show substantial variation over different types of police agencies, the common feature is that police officers from all police agencies tended to use less serious forms of force more frequently. For example, among the city police agencies, police officers used handcuffs at the rate of 490 per 1,000, bodily force at the rate of 272, and weapons being drawn at the rate of 130 per 1,000 sworn officers (Pate and Fridell 1993, 74). On the other hand, police officers shot at civilians at the rate of less than 5 per 1,000, used electrical devices at the rate of 5 per 1,000, and used neck restraints at the rate of 1 per 1,000 sworn officers (Pate and Fridell 1993, 74). Pate and Fridell (1993, 107) document the rates of use-of-force citizen complaints per 1,000 sworn offices and report that these rates varied from 16 percent for the state agencies to 48 percent for the city police agencies. Fewer than (p. 595) 15 percent of all these complaints were sustained by the agencies (Pate and Fridell 1993, 114).
3. Data on the Use of Deadly Force
Although it is rare, the use of deadly force nevertheless is an important and sensitive topic; the disparity in the fatal shootings of African Americans and whites in the 1960s, sometimes to the extent of 6 or 8 to 1 (Robin 1963; Walker and Katz 2008, 404), sparked riots in the 1960s. The change occurred in the 1980s after the Garner decision (Tennessee v. Garner, 471 U.S. 1 ), when the old fleeing-felon rule was reversed. Research suggests that the Garner decision was not as effective in changing state laws (Cassell and Hayman 1998) as it was effective in changing the police agencies’ internal administrative rules (e.g., Skolnick and Fyfe 1993). Fyfe (1979) analyzed the NYPD data and reported that the number of shots fired was reduced by 30 percent, particularly in the area of fleeing-felon situations. In the end, the estimates are that the decision seemed to reduce the number of fatal police shootings nationwide by about 60 incidents annually (e.g., Tennenbaum 1994) or from 400 in 1983 to 300 in 1987 (Geller and Scott 1992) and that the ratio of African Americans and whites shot and killed dropped from 8 to 1 in the 1960s to 4 to 1 in the 1980s (Geller and Scott 1992).
Obtaining accurate data on the police use of deadly force or fatal shootings is challenging (National Research Council 2004, 259). The existing studies on lethal force show substantial variation across jurisdictions. Milton et al. (1977) analyze the rates of shootings in seven large US cities in the period 1973–74 and note that the rates of shooting varied from 1.6 to 8.5 shootings per 100,000 citizens (or by a factor of five). Fyfe’s analyses (2002) of the fatal shootings in fifty-one municipal, county, and sheriff’s departments in the period 1990–2000 also detect extensive variation across the agencies. The rate of shooting differential between the lowest and the highest varied by a factor of fourteen in county police agencies, a factor of eight within city agencies, and a factor of six among the sheriff’s agencies.
C. Racial Profiling
The issue of racial profiling quickly grabbed the attention of the public in the mid-1990s, in the aftermath of two lawsuits that alleged racial profiling by state police agencies in Maryland and New Jersey (New Jersey v. Soto, 734 A.2d 350, Superior Court of New Jersey ; Wilkins v. Maryland State Police, No. CCB-93-468 [D. Md. 1993], filed November 14, 1996). Despite the importance of the issue, there is no common definition of what constitutes unlawful racial profiling (Northeastern University Data Collection Resource Center 2010). Racial profiling is typically referred to as the use of race as a key or the key variable in the police practice of stopping, searching, arresting, and ticketing citizens (see, e.g., Weitzer and Tuch 2002, 435; Walker and Katz 2008, 415.
(p. 596) Whereas more than 60 percent of the police chiefs participating in a recent survey (Fridell et al. 2001) thought that racial profiling was not a problem in their jurisdiction, the overwhelming majority of citizens (black citizens in particular) believed that racial profiling indeed was widespread (Weitzer and Tuch 2002, 442). Black respondents—especially young, black men—were substantially more likely to say that they experienced racial profiling than white respondents were (Weitzer and Tuch 2002). Based on multivariate analyses, Weitzer and Tuch (2002, 446) conclude that race and personal experience with profiling were the strongest predictors of citizens’ attitudes toward the police.
1. Data on Racial Profiling
The difficulty in data collection involves several different dimensions. First, racial profiling is a highly political issue. Second, the debate among criminologists on how to measure racial profiling correctly has not been resolved and “no industry standard exists for measuring racial or gender profiling” (Northeastern University Data Collection Resource Center 2010). Third, there is no established rule that would unequivocally determine when racial disparity becomes racial discrimination. In measuring racial profiling, the first step is to determine the number of persons stopped, arrested, searched, and/or ticked (“the numerator”). The second step is to compare their racial distribution with the racial distribution of the benchmark (“the denominator”). Determining the denominator, particularly for traffic and other moving violations, is particularly challenging. The last step in the process is to explore the size of the differences detected through the analyses and conclude whether the differences point toward racial disparity or racial discrimination.
As part of his expert testimony in New Jersey v. Soto (734 A.2d 350, Superior Court of New Jersey ), John Lamberth undertook the first thorough effort to measure racial profiling. Lamberth and his team measured the speed of passing traffic on the New Jersey Turnpike and compared the racial distribution of drivers speeding with the racial distribution of the drivers stopped and ticketed by the New Jersey State Police. His analyses show that African Americans constituted 13.5 percent of drivers, 15 percent of drivers speeding, 35 percent of drivers stopped, and 73.2 percent of drivers arrested. In the Maryland case (Wilkins v. Maryland State Police, No. CCB-93-468 [D. Md. 1993], filed November 14, 1996; Consent Decree, US District Court for the District of Maryland), Lamberth showed that African Americans constituted 17.5 percent of the drivers speeding, 28.8 percent of the drivers stopped, and 71.3 percent of the drivers whose cars were searched. Matt Zingraff’s team (2000) studied the North Carolina Highway Patrol and improved the benchmark by measuring not only whether the drivers were speeding but also the rate at which they were speeding (which indicates the severity of the violation).
The collection of official data on racial profiling is spurred by the Violent Crime Control and Law Enforcement Act of 1994 and by individual lawsuits. The act (p. 597) authorizes the attorney general to investigate any “pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or the laws of the United States.” The threat of the lawsuit, the consent decree between the Department of Justice (DOJ) and a police agency, as well as the push from the civil liberties groups, have had two effects: (1) the sudden increase in the number of police departments collecting the data on racial profiling (more than 400 by 2003; McMahon et al. 2003) and (2) the enactment of state laws requiring racial profiling policies (see, e.g., Northeastern University Data Collection Resource Center 2010). According to that document, “more than twenty states have passed legislation prohibiting racial profiling and/or requiring jurisdictions within the state to collect the data on law enforcement stops and searches” and additional five have the legislation pending. With few exceptions (e.g., San Jose Police Department 1999), the police efforts in data collection were primarily focused on the numerator (see, e.g., National Research Council 2004, 321).
III. Responses to Police Misconduct
Reactions to the instances of police misconduct are far from uniform. On the one hand, instances could go completely unnoticed; on the other hand, they have the potential to create a scandal, ignite riots, lead toward the establishment of an independent commission or an citizen review board, result in convictions of police officers and their dismissal from the police agency, firing of the police chief, and the decline of police legitimacy. The extent and nature of the reaction depend on many factors including, for example, the nature of the legal rules violated, severity of misconduct, form of misconduct, level of organization, seriousness of consequences, and characteristics of the victims.
Control mechanisms have traditionally been divided into external ones (those housed outside of the police agency) and internal ones (those housed within the police agency). In addition, there are a few mixed mechanisms of accountability that have elements of both internal and external mechanisms (those housed outside of the police agency but potentially having police officers as members).
A. Internal Mechanisms of Control and Accountability
The police agency itself has one of the crucial roles in achieving accountability and controlling misconduct. What the agency does or does not do to control misconduct varies greatly: “[i]t starts with the recruitment and selection process and continues with training and supervision, incorporating various aspects of rule establishment, communication, and enforcement that stimulate, allow, or prevent (p. 598) police officers from turning their propensity toward corruption into actual corrupt behavior” (Kutnjak Ivković 2005, 68).
1. Administrative Rules
Administrative rules channel the use of discretion, describe appropriate conduct of police officers, and prohibit inappropriate conduct. These rules, typically made either by the police chief or the police chief and the mayor (see, e.g., Mastrofski 1988), seek to prescribe the use of discretion in critical incidents (e.g., arrest, use of force, use of deadly force, high-speed pursuits, domestic violence), instruct officers to complete written reports after each such incident, and require supervisory oversight (see, e.g., National Research Council 2004; Walker and Katz 2008). The content and nature of the rules vary substantially across police agencies; these official administrative rules, codified in the standard operating procedure manuals (SOP), could be several hundred pages long and typically put more emphasis on trivial issues (see, e.g., Bittner 1970; Walker and Katz 2008).
Even in the agencies with extensive rules, the rules could open the doors to misconduct by being ambiguous or by failing to regulate certain aspects. Fishman (1978) reports that police officers in the police agencies characterized as corrupt were more likely to say that the rules were not clear than did the police officers in the police agencies that were relatively free of corruption. Furthermore, multiple commission reports (e.g., Knapp Commission 1972; Pennsylvania Crime Commission 1974; Mollen Commission 1994;) document many instances in which police administrators, particularly the police chief, created unofficial rules that, in reality, trumped the official ones (Kutnjak Ivković 2005).
Official administrative rules have been used to characterize the use of deadly force, use of force, high-speed pursuits, and domestic violence. Studies exploring the effect of the administrative rules on the use of deadly force reported positive changes (Fyfe 1979; Geller and Scott 1992). For example, Fyfe’s study of the NYPD restrictive policy on deadly force (1979) finds that the number of shots fired was reduced by 30 percent. Similarly, the regulation of the high-speed pursuits via administrative rulemaking seem to be successful (e.g., Alpert 1997). In his study of high-speed pursuits, Alpert (1997) finds strong evidence that official policies affect such pursuits. Alpert’s results (1997) indicate that, when one of the agencies (Metro-Dade Police Department) implemented a more restricted policy of high-speed pursuits, the number of pursuits decreased dramatically the next year (82 percent). On the other hand, when another agency (Omaha Police Department) relaxed its rules regarding the high-speed pursuits, the number of pursuits increased by 600 percent the following year (Alpert 1997). The effect of administrative rulemaking on misconduct has been explored in several other areas (e.g., use of force, domestic violence); the evidence is more limited and shows less success (National Research Council 2004, 285).
(p. 599) 2. Police Chief and Administration
Police chief and the top leadership in the police agency play one of the critical roles. Kutnjak Ivković (2005, 70) describes their role:
The importance of this role is recognized by police officers as well; in a nationwide sample of police officers (Weisburd and Greenspan 2000, 6), the majority agreed that “a chief’s strong position against the abuse of authority can make a big difference in deterring officers from abusing their authority.” The chief may himself behave ethically (see examples to the contrary in Kutnjak Ivković 2005, 74) but fail to perform the traditional managerial functions—planning, organizing, coordinating, and controlling (Moore and Stephens 1991)— that he is expected to perform as part of his role. Finding examples of such failures is not difficult.
Although the powers of police chiefs are either explicitly or implicitly limited by the mayor, politicians, public, media, civil service rules, police unions, existing laws, and court cases, police chiefs and the administration determine “the rules of the game” within the police agency. They may exert a substantial influence on the recruitment standards, training in ethics, leadership and management style, supervisory accountability and standards, internal control mechanisms, discipline, and rewards.
Terrill’s study (2001) of the police use of force shows that the official position of the police chief and his administration on the “style of policing practiced” had a direct influence on how police officers used force; in Indianapolis, where the top police administration emphasized the “get tough” approach, police officers were more likely to use higher levels of force than police officers in St. Petersburg, where the top administration emphasized a problem-solving model.
Both the Knapp Commission (1972) and the Pennsylvania Crime Commission (1974) enumerate many examples of police chiefs adhering to the “rotten apple” approach, turning a blind eye to corruption, and thus allowing it to flourish. The discrepancy between the official stance and the police chief’s actual behavior has substantial influence on police officers’ behavior (see, e.g., Knapp Commission 1972, 170–71).
Another layer of control and accountability in a police agency consists of supervisors. In a recent nationwide survey of police officers (Weisburd and Greenspan 2000, 6), the overwhelming majority of police officers (90 percent) viewed the supervisors’ role in preventing misconduct as critical. Indeed, supervisors are expected to monitor police officers under their command, review their reports (e.g., use of force, arrest), advise police officers when their performance is less than satisfactory (e.g., annual performance evaluations), and file a report when they are aware that police officers violated the rules (Walker and Katz 2008, 482).
(p. 600) Supervisors can either actively take part in misconduct, as the Knapp Commission (1972) and the Pennsylvania Crime Commission (1974) find regarding supervisors in the NYPD and the Philadelphia Police Department, or may fail to take a stance on misconduct and enforce the official rules, as the Mollen Commission (1994) and the Christopher Commission (1991) document for the NYPD and the LAPD. Supervisors who reported misconduct in the NYPD in the 1990s were not rewarded for it; in fact, they suffered informal punishment for doing so (Mollen Commission 1994, 13). Overall, many reports by independent commissions suggest that supervisors in troubled agencies were not held accountable for behavior of their subordinates (e.g., Christopher Commission 1991; Los Angeles Police Department 2000; Knapp Commission 1972; Mollen Commission 1994).
The Christopher Commission (1991) reports that the supervisors, expected to monitor the discussion on the mobile digital terminal (MDT) communications (which contained numerous examples of racist language), failed to do so. The Mollen Commission (1994) points out that supervisors failed to review the reports and question subordinates who were falsifying search and arrest forms (29) or overtime payment forms (39). The LAPD’s Board of Inquiry (Los Angeles Police Department 2000, 61) writes about the examples of poor supervision in the Rampart area, characterized by both corruption and use of excessive force; “the practice of officers printing or signing a sergeant’s name to booking approvals and arrest reports was a particularly glaring illustration of poor CRASH [Community Resources Against Street Hoodlums] supervision.”
The scandal that led toward the establishment of the Mollen Commission in July 1994 was ignited with the arrest of Michael Dowd and five other NYPD officers in May 1994. Dowd did not just accept bribes, he actually became a drug dealer himself, helped operate large drug rings (Mollen Commission 1994, 17), and was subsequently convicted to a fourteen-year sentence (Treaser 1994). His supervisors did not report his evident misconduct (which gave the impression to Dowd that he could do anything; Mollen Commission 1994, 82) and, in fact, gave Dowd glowing performance evaluations, citing him as “a role model” (Mollen Commission 1994, 118). The Christopher Commission (1991, ix), investigating the allegations of racism, sexism, and use of excessive force, heard the testimony from the Assistant Chief Dotson who said that “we [the top administration] have failed miserably” to hold supervisors accountable for excessive force by officers under their command.
In 1994 Bill Bratton and other top administrators in the NYPD developed CompStat, a new mechanisms to reduce crime and enhance accountability of the administrators and managers (see, e.g., McDonald et al. 2001). CompStat’s purposes are achieved through the meetings in which the top administrators require of middle managers to discuss crime problems in their areas and hold them accountable. After the initial debut in New York, CompStat became popular and widespread; in 1999, one-quarter of the sample of police agencies with one hundred or more employees reported implementing CompStat, while an additional one-third (p. 601) of the sample was planning to do so (Weisburd et al. 2003). Research evaluating CompStat across both dimensions is scant; Silverman (1999) gave an excellent grade to the NYPD’s CompStat, while Willis and colleagues (2003) expressed a more skeptical view of the CompStat in Lowell, Massachusetts; Newark, New Jersey; and Minneapolis. Research suggests that CompStat may be working as an accountability mechanism at the middle-manager level (existing studies conclude that middle managers experience more pressure to know about, and react to, crime in their areas). However, the accountability did not incorporate the middle managers’ subordinates—these middle managers did not hold the CompStat meetings with their subordinates (National Research Council 2004, 188). Furthermore, accountability, as achieved through the CompStat meetings, extends to the crime level in the area but does not incorporate accountability for the level of integrity and control of rule-violating behavior by middle managers’ subordinates.
4. Internal System of Control
The internal systems of control typically rely on separate units within the police agency (i.e., internal affairs units) to receive complaints, investigate them, and forward the case to the decision-making structures (e.g., police chief, chain of command). The overwhelming majority of these systems are exclusively internal (see, e.g., Perez 1994). Whereas the work of internal mechanisms could be both reactive (e.g., investigating a complaint) and proactive (e.g., integrity tests, conducted by a few agencies, Baueris 1977; Giuliani and Bratton 1995), proactive investigations are more an exception than the rule (Kutnjak Ivković 2005).
The internal system of control is typically initiated with the complained filed by citizens or police officers, or reports generated by police supervisors. As the existing research reports, whether citizens will choose to file a complaint depends on many issues. Citizens may be unfamiliar with the system (e.g., Russell 1978), required to sign, swear, or have their complaints notarized (e.g., Pate and Fridell 1993), or otherwise be asked to go through substantial hurdles to file the complaint, be threatened with criminal charges for false reports (e.g., President’s Commission on Law Enforcement and Administration of Justice 1967b), fear that the police would retaliate (e.g., Guerrero-Daley 2000), be discouraged by the police to file a complaint (e.g., Walker and Bumphus 1992), distrust the police or think that the police will not investigate the complaint (e.g., Walker and Bumphus 1992). An in-depth study of citizen complaints by Klockars, Kutnjak Ivković, and Haberfeld (2006) illustrates the nature of the problems associated with the comparison of citizen complaints in three US police agencies. Rates of complaints vary greatly across cities, suggesting that more than just the level of misconduct influences them (e.g., West 1988). For example, a nationwide survey of police agencies by Pate and Fridell (1993) suggests that the rate of use of force complaints per 1,000 officers varies widely across agency types (20.7 percent for sheriff’s departments, 33.8 percent for county agencies, 47.5 (p. 602) percent for municipal agencies, and 15.7 percent for state agencies), as well as across agency sizes within the same type. Pate and Hamilton’s study (1991, 144) of the largest six police departments reports that the rate of complaints per 100 sworn officers ranged from 5.5 in Philadelphia, 10.5 in Los Angeles, 13.8 in Detroit, and 19.5 in New York, to 27.1 in Chicago and 36.9 in Houston.
Matters are even more complex in the context of complaint resolution; typically, police agencies sustain between 0 and 25 percent of all complaints (Pate and Fridell 1993, 42; Dugan and Breda 1991; Perez 1994), with 10 percent being typical (e.g., Pate and Fridell, 1993; Wagner 1980). However, the key issue is that the rate of complaints and the rate with which complaints are sustained are influenced by so many factors other than the actual rate of misconduct that these rates likely can tell more about the agency’s openness to complaints, the ease with which citizens could file complaints, and the level of legitimacy of the police, than about the actual level of misconduct (see, e.g., Adams 1999; Walker 2001). Pate and Hamilton (1991, 142) conclude in their seminal research that “methods of filing and investigating complaints vary notably across departments. As a result, data concerning the disposition of complaints are not comparable.”
The idea of the police policing themselves seems appealing in theory. The reality, however, is that these systems have failed, resulting in some cases with most severe violations of official rules going unprocessed. Findings by a few research studies (e.g., Sherman 1978) and reports by independent commissions, the best source of information on the topic, provide numerous examples of such failures (e.g., Knapp Commission 1972; Pennsylvania Crime Commission 1974; Christopher Commission 1991; Mollen Commission 1994). They can affect, and may be noticed in, many aspects of the system, from not establishing written guidelines and providing resources and manpower to the internal affairs units, to failing to investigate complaints, ignoring information, and openly hiding complaints (see, e.g., Knapp Commission 1972; Pennsylvania Crime Commission 1974; Christopher Commission 1991; Mollen Commission 1994;). The Mollen Commission (1994, 78) finds that the message from the top administrators not only failed to encourage reporting and investigation of corruption but actually condemned discovery of corruption and evaluated it as a “management failure.”
The most recent addition to the arsenal of internal system of control or the internal accountability system, regarded as the “best practice” by the Department of Justice “Principles for Promoting Police Integrity,” is the early warning systems. Although the US Commission on Civil Rights (1981) recommended the implementation of early warning systems in the 1980s, the idea did not gain popularity until the 1990s, with a few exceptions (e.g., Miami-Dade Police Department). The underlying philosophy of early warning systems complements and advances the earlier findings that, typically, a small group of police officers within the agency—as identified in the NYPD by the Mollen Commission (1994) and in the LAPD by the Christopher Commission (1991)—is responsible for a disproportionately large (p. 603) percentage of complaints. Before the early warning systems, typically nothing was done with such problem police officers (Walker 2001, 110). These systems, exclusively proactive in nature, operate under the assumption that, if potential problems are spotted and addressed early, they would not become serious problems later. Although the extent and nature of the information input in the early warning system varies, it typically includes use of force reports, accident reports, complaints, financial records, and other information sometimes routinely collected by the police agency (see, e.g., Walker, Alpert, and Kenney 2000; Walker and Katz 2008). Once red flags are raised, the process proceeds into intervention (typically informal counseling by the supervisor or retraining) and post-intervention (monitoring for a certain period of time; Walker, Alpert, and Kenney 2000). A 1998 nationwide survey of municipal police agencies reveals that about one-third of them either have already implemented or are developing their early warning systems (Walker, Alpert, and Kenney 2000). Additional systems are being developed as a consequence of the decrees between the Department of Justice and several police agencies (Walker and Katz, 2008, 489). Presently, the research evaluating the effectiveness of early warning systems is limited (e.g., Vera Institute of Justice 1999; Walker, Alpert, and Kenney 2000). The findings largely suggest that these early warning systems seem to be effective with respect to the reduction in the number of use of force reports and citizen complaints by the officers subject to early warning systems.
B. External Mechanisms of Control and Accountability
Aside from the police agency itself, various institutions and organizations play important roles in control of police misconduct and enhancement of police accountability. Their effects may potentially be limited to mostly the case at hand (e.g., prosecutions and convictions of police officers who used excessive force) or they may be far reaching (e.g., the US Supreme Court precedents), affecting policies and the practice of policing for decades.
1. The Supreme Court
The Supreme Court decided a number of cases relevant for policing in the 1960s, using the Fourteenth Amendment to expand the application of many federally established standards to the state and local police.
One of the key cases is Mapp v. Ohio (367 U.S. 643 ), in which the Supreme Court decided that the evidence against Dolree Mapp was obtained illegally and concluded that illegally obtained evidence is inadmissible in a state court. Through the application of the Fourteenth Amendment, the Supreme Court extended the application of the exclusionary rule—which already existed at the federal level—to the state and local police agencies. Studies (e.g., Controller General of the United States 1979; Krantz et al. 1979) report that the exclusionary rule applies directly to a (p. 604) very small percentage of cases; the motion to suppress evidence (i.e., the exercise of the exclusionary rule) is filed in a relatively small percentage of cases (below 15 percent), and when the motion is filed, it is granted infrequently (about 20 percent of the motions). Thus, the overall “rate of success” of the motion to suppress evidence is under 3 percent.
Earlier studies exploring the effects of the Mapp decision on the police behavior (e.g., Skolnick 1966; Oaks 1970; Canon 1974) diverge in their assessments regarding whether the decision had a positive effect on police officer behavior during search and seizure. More recent studies (e.g., Orfield 1987; Cannon 1991) focus either on the effect of the Mapp decision or on the severity and nature of the search and seizure violations. Based on his interviews with twenty-six narcotics officers in Chicago, Orfield reports positive effects of the exclusionary rule at the institutional level among the police, prosecutors, and judges. On the individual level, Orfield reports that the detectives typically said during the interviews that they adhered to the constitutional standards of search and seizure when their conduct was motivated primarily by the potential prosecution of the offender. The exclusionary rule seems to have been less effective when other motives were dominant (confiscation of contraband, Ofield 1987; disruption of illicit networks or assertion of police powers, LaFave 1965; LaFave and Remington 1965).
The second critical Supreme Court decision is Miranda v. Arizona (372 U.S. 436 ). The Miranda warnings have become part of the American popular culture (see, e.g., Dickerson v. United States, 530 U.S. 428 ). In a nutshell, the Supreme Court held in Miranda that a confession obtained during custodial police interrogation constitutes a violation of the Fifth Amendment right against self-incrimination, unless the police provide specific warnings to the persons that they have the right to remain silent, that anything they say could be used against them, and that they have the right to counsel.
The early empirical studies, conducted immediately after the decision, were concerned with the effect these new Miranda warnings would have on the police ability to investigate crimes. They find that the Miranda warnings had only minimal effects (see, e.g., Black and Reiss 1967; Wald et al. 1967; Schaefer 1971). In fact, Black and Reiss (1967) find that there is plenty of other evidence available in the felony cases that the police could use instead of relying on the confession. Later studies suggest that the effect of the warning, measured as the reduction in confessions, resulted in a 4–16 percent decrease in the number of confessions, depending on the study (see, e.g., Wald et al. 1967; Stephens et al. 1972; Witt 1973; Neubauer 1974). Evidence further suggests that, even when the Miranda warnings were issued, they did not have a lot of weight on the outcome of the case because in most cases suspects—84 percent of suspects in Cassell and Hayman’s study (1998) and 78 percent in Leo’s study (1998)—voluntarily waived their Miranda rights.
The early study by Black and Reiss (1967), already in progress when the Miranda decision was made, suggests that police officers rarely gave the Miranda warnings. (p. 605) Later studies (Leiken 1971; Baum 1979; Leo 1998) show that the warning is issued routinely, although the style in which the warning is issued tends to be superficial. The most recent study (Leo 1998), relying on direct observation, confirms that the police issued the Miranda warnings in about 96 percent of the cases and thus shows that the Miranda decision had a long-term effect on the police behavior (Leo and Thomas 1998).
2. Criminal Courts
Like any other citizens, police officers can be prosecuted, tried, and convicted for a broad range of crimes (e.g., robbery, assault). Unlike other citizens, they can also be prosecuted, tried, and convicted for crimes that require that the person who committed the crime is a public employee (e.g., extortion, 18 U.S.C. 1951; criminal liability for deprivation of civil rights, 18 U.S.C. 242). Despite the potential for general deterrence these convictions could bring, the reality is that, because of the very limited number of cases, their primary focus is more on specific deterrence and retribution.
Both state and federal prosecution for the use of excessive force cases are rare (e.g., Adams 1995; Cheh 1995, 241; Human Rights Watch 1998) and the rate of conviction is low. Out of about eight thousand police misconduct complaints that the Department of Justice receives annually (Cheh 1995, 241), about three thousand are investigated and only fifty presented to the grand jury. Thus, researchers have concluded that, because the chances of arrest and conviction are so low, criminal convictions for the use of force are not an effective deterrent mechanism (Skolnick and Fyfe 1993; Cheh 1995).
Similarly, in the period from 1992 to 1998, there were fewer than fifty convictions each year for federal law enforcement corruption (Kutnjak Ivković 2005, 59). At the state level, the convictions are almost equally sparse. At the time the Knapp Commission (1972) found corruption to be widespread in the NYPD, prosecutors initiated only about thirty cases per year, and, even then, only one out of five police officers prosecuted, tried, and convicted received a prison sentence of more than a year (Knapp Commission 1972, 252). Similarly, the Pennsylvania Crime Commission (1974), which investigated the extent and nature of corruption in the Philadelphia Police Department and found widespread corruption in the agency, reports that there were on average only seven arrest per year for corruption (Pennsylvania Crime Commission 1974, 446).
3. Civil Courts
Citizens who want to sue police agencies for violation of their civil rights can do so by relying on the state law or on the federal law. The payments resulting from the civil lawsuits vary from an average of 1.6 million annually in Cincinnati to an average of 35.8 million annually in Los Angeles (Kappeler 2006, 10). Civil lawsuits (p. 606) cover only a small segment of the overall number of contacts between the police and citizens—“one-tenth of 1 percent of all encounters between police and persons suspected of committing a crime could result in civil litigation” (Novak, Smith, and Frank 2003, 355).
At the federal level, citizens could file Section 1983 lawsuits (42 U.S.C. 1983), viewed as the most powerful of lawsuits. The power of the Section 1983 lawsuits is grounded on two Supreme Court decisions. In Monroe v. Pape (365 U.S. 167 ), the Supreme Court determined that police officers could be held liable for deprivation of the Fourth Amendment rights under the civil rights statute. In Monell v. Department of Social Services (436 U.S. 658 ), the Supreme Court established that municipalities could be held liable for police misconduct if it was pursuant to the agency’s policy or custom. As these Supreme Court decisions opened the doors for citizens to sue police officers and police agencies, the estimates are (there is no systematic nationwide data) that the number of the Section 1983 lawsuits increased dramatically since the 1960s (Cheh 1995, 250).
The effect of Section 1983 for citizens as plaintiffs is limited to compensatory and punitive damages (Cheh 1995, 255); the Supreme Court in Lyons (City of Los Angeles v. Lyons, 461 U.S. 95 ) set up a practically unattainable threshold and thus implicitly eliminated the possibility of injunctive relief for individual citizens. Some studies suggest that police officers are bothered by the idea that they could be sued (e.g., Kappeler 1997, 6), but the reality is that police officers face no financial incentives to change their behavior as a consequence of these lawsuits. The compensatory damages (and sometimes punitive damages) resulting from the lawsuit are paid by the city government, not by individual police officers or the police agency. Police officers in some jurisdictions are protected by law from paying legal fees and damages, and city attorneys represent the officers in the lawsuits (e.g., Patton 1993). Furthermore, even when police officers had lost the lawsuits, their careers as police officers were not affected; Chevigny (1995, 102) reports that, out of 185 officers involved in civil lawsuits, only eight were disciplined and fourteen were actually promoted.
The effect of civil suits on the police agencies is no stronger. Several studies that focus on specific cities (e.g., Yale Law Journal 1979; Littlejohn 1981) report that police misconduct suits have had very limited effect on the police agencies. Neither New York nor Los Angeles implemented any resulting changes (see Chevigny 1995). One police agency, concerned with the rising costs of lawsuits (e.g., Los Angeles County Sheriff’s Department), took proactive steps to address the issue of civil lawsuits. In 1993 the Office of the Special Counsel was established to investigate problems, recommend reforms, and reduce the costs of litigation (Special Counsel to the Los Angeles County Sheriff’s Department 1996). The reports issued by the Special Counsel (a form of citizen review) suggest positive changes (Special Counsel to the Los Angeles County Sheriff’s Department 1999, 2002).
(p. 607) As authorized by the 1994 Violent Crime Control Act (42 U.S.C. 14141, 1994), the Department of Justice could act as a plaintiff and sue a police department when there is “a pattern or practice of conduct by law enforcement officers … that deprives persons of rights, privileges, or immunities secured or protected by the Constitution.” The most recent data available from the Department of Justice (January 31, 2003) indicate that the investigation of fourteen police agencies is ongoing, that out of the ten lawsuits, four ended with consent decrees and six with out-of-court settlements (Department of Justice 2010). Each consent decree or memorandum of agreement required police agencies to conduct extensive reforms that, typically, would include revising the use of force reporting system, establishing the early warning system, revising the complaint procedures, and improving training (Walker and Katz 2008, 502). To ensure that the police agencies are implementing the required changes, all consent decrees and memoranda of agreement contain a provision of a court-appointed monitor. Walker and Katz (2008, 503) report that the 2005 conference on the pattern-and-practice lawsuits suggests that this litigation could be an effective tool in enhancing police accountability, particularly in the agencies in which the standards of accountability are low. However, systematic empirical evidence on the effects of these lawsuits does not exist. The Vera Institute, serving as a monitor for the Pittsburgh Police Department, generally reports that the police are on track with the required changes (Vera Institute of Justice 2002). On the other hand, the reports concerning police agencies in Los Angeles and Washington, DC indicate that they failed to meet some of the deadlines (Walker and Katz 2008, 503).
4. Independent Commissions
Independent commissions typically are established in the wake of scandals. Political pressure is generated and demands are made on the political leadership to establish an independent commission to investigate the extent and nature of misconduct and recommend changes. For example, the Christopher Commission (1991) was established after the Rodney King video circled the globe. The Mollen Commission (1994) was established after the arrest of Michael Dowd and five other police officers made front-page news. Other prominent examples of independent commissions include the Wickersham Commission (National Commission on Law Observance and Enforcement 1931), the President’s Crime Commission (1967), and the Kerner Commission (National Advisory Commission on Civil Disorders 1968), Knapp Commission (1972), and Pennsylvania Crime Commission (1974).
A key advantage of the independent commissions, composed of prominent community members and experts on policing, is that they set the standards that could affect the way policing is done across the country (see, e.g., National Research Council 2004; Walker and Katz 2008). On the other side of the spectrum, the (p. 608) work of independent commissions could be troubled by the lack of political independence (e.g., Pennsylvania Crime Commission 1974), insufficient legal authority (e.g., Knapp Commission 1972, 44), or inadequate resources (e.g., Pennsylvania Crime Commission 1974, 762).
The most serious challenge related to independent commissions is their temporary nature (e.g., Kutnjak Ivković 2005; National Research Council 2004; Walker and Katz 2008). Even when the commission engages in a thorough investigation and proposes a set of recommendations, the quality work done by the commission would be largely wasted if nobody were to implement them. Illustrative of this point is the example of the aftermath of the Christopher Commission (1991). It recommended the establishment of the Office of Inspector General who would be in charge of auditing, investigating, and overseeing the LAPD’s efforts to handle complaints, and the establishment of the early intervention system. A decade after the recommendation, the LAPD still did not have the early warning system (Walker 2005, 179). The establishment of the Office of Inspector General was postponed until 1995, and Katherine Mader, the inspector general, started performing her role in mid-1996. The opposition from the police administration and the police commission made the job impossible to perform and Mader resigned in 1998, after further attempts by the chairman of the police commission to restrict her authority (Walker 2001, 39).
C. Mixed Mechanisms of Control and Accountability
Finally, the last group incorporates mechanisms of control or accountability that may have police officers participating in them but which are housed outside the police agency.
1. Citizen Reviews
The idea of an independent agency entrusted to review citizen complaints had existed since the 1960s, yet citizen reviews gained popularity only in the last two decades (e.g., Walker 1995; Walker 2005). By 2005, scholars estimated that almost all large municipal agencies have some form of citizen review (e.g., Walker 2005, 37). However, the classification of citizen reviews as a mixed mechanism of control rests on the results of a survey conducted by Walker and Kreisel (2001), according to which about 23 percent (15 out of 65) of citizen reviews have police officers as members.
The idea behind citizen reviews is to establish a review of citizen complaints independent of the police agency itself. However, the only survey of citizen reviews (Class I citizen review; Walker 2001) suggests that citizens conduct the initial fact-finding completely independently from the police in only 34 percent of the reviews; they provide input in police processes in an additional 46 percent of the (p. 609) reviews (Class II citizen input; Walker 2001; Walker and Kreisel 2001). Class III citizen reviews (“citizen monitors”) serve as appellate reviews once the investigation by the police agency is completed. Unless entrusted to do policy reviews as well, the focus of these three classes of citizen reviews is on individual cases; they try to ensure that justice is done in these cases and probably enhance the confidence in the complaint process (but not necessarily in the police!). Even when entrusted with the policy review, the scope of their investigation is limited to the issues raised in the complaints and is unlikely to explore some of the critical issues (e.g., failure to hold supervisors accountable).
The number of studies exploring the effect of these citizen reviews is very limited. One of the problems is associated with the accurate assessment of the citizen review effectiveness is that of finding matching cases investigated by the citizen reviews and internal affairs units; Hudson’s comparative study (1972) uncovers that the citizen review (“Police Advisory Board”) sustained a lower percentage of complaints than the internal affairs unit did, which may be explained by different nature of the cases handled by each unit. Kerstetter and Rasinski (1994) report that the level of public confidence in the complaint process increases after the establishment of a citizen review. On the other hand, Sviridoff and McElroy (1989) report that both citizens and the police officers evaluated the New York City Civilian Review Board to be biased against them.
Class IV citizen reviews (“citizen auditors”) “do not investigate individual complaints, but are authorized to review, monitor, or audit the police department’s complaint process” (Walker 2001, 62). Auditors constitute a small percentage of the overall number of citizen reviews (3 percent in the 1990s survey, Walker and Kreisel 2001; a total of twelve reviews as of 2005, Walker 2005, 136). These citizen reviews have the greatest potential to provide feedback relevant for the improvement of the overall complaint system and the operation of the police agency. The San Jose Independent Police Auditor, an example of a successful citizen auditor, used the information contained in the complaints to expand the inquiry into other elements of the system. The auditor, established in 1993, made over ninety policy recommendations by 2005, only seven of which were not accepted by the San Jose Police Department (Walker 2005, 156). Walker describes another successful auditor (Special Counsel to the Los Angeles County Sheriff’s Department), but also lists examples of unsuccessful auditors (e.g., Seattle Police Auditor, Albuquerque Independent Counsel; Walker 2005, 165–66). Indeed, whereas this form of citizen review has the greatest potential of having a long-lasting and continuous effect on the police agency, “the police auditor concept does not automatically translate into success” (Walker 2005, 167). Indeed, citizen auditors may suffer from the failures in vision and direction, lack of cooperation, and political opposition. Systematic research into the effect of this and other types of citizen reviews is limited at best (see, e.g., Walker 2005).
(p. 610) 2. Accreditation
The Commission on Accreditation for Law Enforcement Agencies (CALEA), established in 1979, is the primary source of self-regulation by the police profession. Since 1983 CALEA has been publishing standards, partly required and partly only recommended for the police agencies that seek accreditation. As of September 2009, CALEA has 463 standards (CALEA 2010). An agency that plans to become accredited typically has to undergo extensive organizational changes to comply with the CALEA standards. Walker and Katz (2008, 492) estimate that more than five hundred police agencies have been accredited at the time of publication of their book.
CALEA lists benefits to accreditation, which, among others, include enhanced internal accountability and reduced risk of civil lawsuits (CALEA 2010). Walker and Katz (2008, 493) provide examples of how accreditation reduced insurance costs, improved the use of force reporting, and improved procedures for juveniles in several agencies. Participation in the CALEA accreditation program is voluntary, however. Agencies characterized by widespread misconduct, those in the greatest need of control, are the least likely to go through the lengths to get accredited. Furthermore, while CALEA standards try to capture relevant innovations, a number of them are not required. In fact, they provide only the minimum standards and do not even try to assess the optimal or ideal standards (Walker and Katz 2008, 494).
IV. Challenges and Future Directions
More than four decades ago, the President’s Commission on Law Enforcement and the Administration of Justice (1967a, 144) emphasized the importance of strong public support for the police as a necessary prerequisite for effective policing:
Since Sir Robert Peel’s times, legitimacy of the police has been an important requirement for successful democratic policing. Empirical assessments of the public support for the police show that public support varies over time (e.g., Tuch and Weitzer 1997) and is affected—both short- and long-term—by publicized critical (p. 611) incidents of police misconduct and personal experience with the authorities. Incidents like the Rodney King beating have an effect on how the public perceives the police and how the police subsequently behave. Research regarding the effects of these critical incidents on the legitimacy of the police is quite limited; the extant studies indicate that such incidents may exert differential influence on the views held by various racial/ethnic groups. Future research could carry out in-depth explorations of the effects of such critical incidents, the reasons why some groups tend to experience deeper decreases in confidence in the police as a consequence of these incidents, and why the recovery process varies across all groups. Furthermore, it is not clear how publicized incidents, personal experience, and race interact in shaping views about police legitimacy.
Poor police-community relations adversely affect the ability of the police to prevent crime and apprehend criminals. People hostile to the police are not so likely to report violations of the law, even when they are the victims. They are even less likely to report suspicious persons or incidents, to testify as witnesses voluntarily, or to come forward and provide information…. Yet, citizen assistance is crucial to law enforcement agencies if the police are to solve an appreciable portion of the crimes that are committed.
Although research has identified that the perceived procedural fairness is important and that unfair treatment by the police directly leads toward reduced legitimacy and less obedience, empirical research has only begun to explore the importance of procedural justice compared to distributive justice in police-citizen encounters. We also do not know whether all of the elements of procedural justice (participation, neutrality, trustworthiness, and treatment with dignity and respect) have to be activated and, if so, whether some of them carry more weight than others. Tyler and Huo (2002) seem to indicate that this may be the case. However, Leventhal’s work (1976) and Tyler’s work (1990; 2000) suggest that more than only four elements could be at play, but research on how they—individually or in some logical clusters—affect perceptions of police-citizen encounters is yet to be done.
Prior research did not provide in-depth assessment of how the perceptions of police legitimacy and the elements of procedural justice are associated with, and shaped by, different types of contacts with the police (e.g., voluntary, involuntary; Decker 1981). Do people who distrust the police evaluate all contacts equally, regardless of whether they or the police have initiated the contact? How low would the level of legitimacy have to be so that a pleasant and fair encounter with the police does not count and, if it does count, to what extent could it improve general views of legitimacy? How many unpleasant encounters with the police (and of what nature) can a citizen who supports the police have before his level of confidence in the police decreases? Are the pathways of assessment different for a victim who reported a crime to the police from those a person caught speeding faces when a police officer stops him? To what degree are those assessments affected by the characteristics of individual officers and police agencies, as opposed to the characteristics of citizens, neighborhoods, and cities in which they live? Tyler (2000, 123) argues that cultural backgrounds may affect the factors that individuals use to define fairness. To what degree do these diverse cultural backgrounds exert influence on the general assessments of police legitimacy and assessments of each individual encounter with the police? Current research also seems to indicate that what matters is not only personal experience but also vicarious experience (i.e., experience of other family members and (p. 612) friends). To what degree does personal experience—both positive and negative—carry more weight on the assessments of legitimacy than a vicarious experience?
Although the American society has made substantial strides toward equality of white and minority citizens since Brown v. Board of Education, the relationship between the police and the minority communities is far from ideal; research studies show that minorities are more likely to perceive the contact with the police as unfair than whites are, and are more likely, at least occasionally, to receive unfair treatment from the police, from more frequent stops and searches to more frequent tickets and arrests. Current research tends to indicate that, when they perceive that the police had mistreated them, people are more likely to disobey police commands in their subsequent encounters and evaluate further contacts primarily in terms of their procedural fairness. Research further shows that police officers are more likely to use force toward disrespectful and disobedient citizens, which in turn increases the risk of injury to both citizens and police officers and, at the same time, undermines citizens’ views of police legitimacy. However, the extant research addressing a number of these issues is primarily focused on a small number of jurisdictions surveyed at a particular point in time. How race and ethnicity affect police-citizen interaction nationwide and how the nature and quality of this relationship could be enhanced (e.g., the role that community policing could play in enhancing legitimacy of the police) is far from clear; these pivotal issues crave further research.
It is equally crucial to get a firmer grasp on the actual extent of police misconduct. If citizens perceive that the police are treating them unfairly, do their perceptions match reality? Empirical research into the prevalence and nature of police misconduct did not reach the point at which reliable and systematic nationwide statistics on police corruption, use of excessive force, racial profiling, or other forms of police violation of constitutional, legal, and administrative rules are available. We have bits and pieces of information, obtained using various research methods, typically focusing on one police agency, but, in all honesty, we do not know what the prevalence and nature of police misconduct is. Problems associated with successful measurement are numerous and quite heterogeneous (see, e.g., Kutnjak Ivković 2005), ranging from building a common definition, designing research methodology, and obtaining funding, to convincing citizens and police officers alike to share their experiences as victims and witnesses with researchers and authorities. The Bureau of Justice Statistics police-citizen survey (Bureau of Justice Statistics 2007a), for example, is a promising step in the right direction.
At the outset, lack of reliable and systematic nationwide data on police misconduct implies problems with the mechanisms of control and accountability. Indeed, if we are struggling to measure the prevalence of the problem, we will not be able to assess the success in controlling misconduct and enhancing accountability. Faced with the reality of limited resources, how far do we want to go to push for control and accountability? What is the right balance in which we are able to control misconduct, but are not constraining discretion and creating unnecessary hurdles that (p. 613) undermine the efficiency of the fulfillment of the police role (see, e.g., Anechiarico and Jacobs 1996)?
Although the system of control and accountability incorporates many agencies and institutions (see, e.g., Kutnjak Ivković 2005), the reality is that most of these agencies and institutions do not operate proactively but reactively. The reports provided by independent commissions (e.g., Knapp Commission 1972; Christopher Commission 1991; Mollen Commission 1994) are the best illustrations of how low these mechanisms could sink in and around the agencies in the greatest need of successful control and accountability. With a few exceptions (e.g., Sherman 1974; Walker 2001; Klockars, Kutnjak Ivković, and Haberfeld 2006), research on the effect of these mechanisms of control and accountability is mostly limited to a single police agency and, thus, there cannot be any variation in a number of potentially crucial issues (e.g., level of police misconduct, administrative rules, internal system, larger social and political environment). Nevertheless, several promising mechanisms of control and accountability have surfaced, typically those that can have long-lasting, continuous, and proactive effect on police behavior—administrative rules, pattern-and-practice lawsuits, early warning systems, CompStat, and police auditors. Systematic and thorough evaluations of these mechanisms either do not exist or are just starting (e.g., Walker, Alpert, and Kenney 2000; Walker 2001). Further research could try to develop measures of success, design criteria to recognize successful mechanisms, explore how effective they are both short- and long-term, detect the obstacles they face, and identify conditions that could make them more successful. Indeed, although this topic has been studied for some time, a plethora of new, exciting, and undiscovered material awaits to be explored.
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(2) . Some studies report that the race effect disappears or weakens substantially once various neighborhood characteristics, such as fear of crime, perceptions of disorder, and informal collective security, are taken into consideration (see, e.g., Cao et al. 1996; Sampson and Bartsuch 1998; Reisig and Parks 2002).