Lawrence Rosenthal is a Professor of Law, Chapman University, Dale E. Fowler School of Law. The author formerly served as Deputy Corporation Counsel for Counseling, Appeals, and Legal Policy in the City of Chicago Department of Law. The author is grateful to Blanche Cook, Rachel Harmon, Kate Levine, Mario Mainero, Stephen Rushin, Kate Sachnoff, Lowell Sachnoff, Nirej Sekhon, Seth Stoughton, Jordan Woods, and the participants of the CrimFest conference held at Cardozo School of Law on July 10-11, 2016, for enormously helpful comments on prior drafts, and to Sherry Leysen and the staff of Chapman University’s Law Library for highly capable research assistance.
[T]here is always a well-known solution to every human problem: neat, plausible, and wrong.
SCHOLARS HAVE LONG BEEN CONCERNED ABOUT THE PREVALENCE OF UNLAWFUL POLICE VIOLENCE AGAINST CIVILIANS.1 This has been coupled with a concern that police unfairly target racial minorities, particularly African Americans and black people,2 for official scrutiny.3
Consider police shootings of civilians. Statistics are scarce and inconsistent, a reality that inhibits reliable analysis.4 Even so, it appears that the overall rate of police homicide has dropped in recent decades.5 Far more troubling, however, is the mounting evidence suggesting that those shot or killed by police are disproportionately persons of color.6 The available data suggest a similar racial skew with respect to police use of nondeadly force.7
Police violence is generally explained in terms of sociological theories contending that coercive governmental authority is most likely to be deployed against individuals perceived by officers to be of inferior status; psychological theories contending that some officers are inclined to utilize violence when confronted with what they regard as oppositional behavior; and organizational theories contending that some police departments develop a culture that tolerates or even promotes violence.8 Whether the explanation is sociological, psychological, or organizational, the precise mechanism by which violence comes to be disproportionately used against minorities is unclear. Perhaps the explanation most frequently offered in legal scholarship is the prevalence of implicit bias, by which stereotypical perceptions of minorities cause officers to perceive them as threatening — a phenomenon well documented in psychological literature.9
Racially-skewed policing not only has tangible consequences in terms of the disproportionate use of force against persons of color, but it also contributes to a racial skew in public perceptions: a poll commissioned by a presidential task force found that 83% of whites had a “great deal” or “fair amount” of confidence in the police, while only 63% of Hispanics and 52% of black people shared that view.10 This racial disparity has been reflected in polling data for some time.11
Reform advocates have advanced a wide variety of proposals to address police violence, usually involving more robust criminal, civil, or administrative sanctions against police. The striking thing about this reform agenda, however, is that it is all stick and no carrot. This approach is less likely to produce optimal performance than to reinforce the code of silence — frequently documented in the literature on policing — in which officers fail to acknowledge wrongdoing in order to insulate themselves and their peers from discipline. Equally important, there has been no effort to assess proposed reforms in light of what we know about the sociology of policing and the ecology of high-crime communities. Utilizing the insights found in the literature on police science, sociology, and criminology and, occasionally, the author’s experiences as a senior municipal official, this Article assesses the merits and potential unintended consequences of the leading reform proposals, and discusses some more promising reforms that have not received scholarly attention.
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