Accountability for Bad Apples: Police Reforms to Restore Faith in Institutions

Institutions—the organizations and formalized relationships we create to jointly accomplish mutually valued objectives—are a vital source of social capital. They strengthen communities, encourage social support, and establish our way of life. Unfortunately, as documented in the Social Capital Project’s flagship report, What We Do Together, Americans’ confidence in these institutions has declined dramatically over the past 50 years. 1 We are less confident in federal and state government, mass media, banks, newspapers, organized religion, public schools, organized labor, big business, and the medical system. Averaging across seven different institutions, Gallup reports that the share of Americans reporting “a great deal” or “quite a lot” of confidence in them fell from 44 percent in 1973 to 27 percent in 2018. 2

Declining confidence in institutions is one of the most important indicators of the deterioration of associational life in America. When we lack faith in the organizations we have formed together to achieve our ends, we are correspondingly less likely to attempt to do things together. We are less inclined to cooperate with those institutions or to feel a part of something bigger than ourselves.

As suggested by Yuval Levin, a key reason for eroding confidence in institutions is that there is too little accountability for people operating within them, who have become too removed from the roles they are supposed to serve. 3

Law enforcement provides an immediately relevant example. In 2004, 64 percent of Americans indicated to Gallup that they had “a great deal” or “quite a lot” of confidence in the police. Yet in June of last year, the figure stood at 48 percent. 4 The diminished standing of police is part of the more general decline in the standing of institutions. Police officers, by and large, serve the public admirably, keeping Americans safe and doing so professionally. There is, however, a long history of breaches of the public trust by officers who did not live up to their calling. From the abuse that led to the riots in Watts and numerous other cities in the 1960s, to the beating of Rodney King by Los Angeles police and the unrest that followed their 1992 acquittal, to George Floyd’s death at the hands of law enforcement last year, police misconduct continues to be a public flashpoint.

The widely publicized deaths of Floyd, Taylor, and several other Black Americans over the past few years have weakened trust, sparked outrage, and led to widespread demands for increased police accountability across the nation. These also have led to peaceful protests, violent riots, and increased attacks on law enforcement. A 2018 survey from the Pew Research Center revealed that 61 percent of people believe that police officers act unethically some or most of the time, and 45 percent do not think that police officers face serious consequences for unethical behavior. 5

Confidence in law enforcement officers is especially low among racial minorities. While 72 percent of White Americans believe that police officers treat racial and ethnic groups equally at least some of the time, only half of Hispanics and one third of Black Americans believe the same. Similarly, a 2016 survey from the Cato Institute found that Black Americans (73 percent) and Hispanics (54 percent) are far more likely than Whites (35 percent) to believe that police are too quick to use lethal force. Black Americans are also twice as likely as White Americans to know someone physically abused by police and to say that police tactics are generally too harsh. 6

These racial disparities in perception reflect real differences in treatment given the same circumstances. 7 As would be expected if diminished faith in institutions leads people to withdraw from them, groups with low confidence in the police are less likely to cooperate with them. For example, Emily Ekins of the Cato Institute reports that Black Americans are much less likely than Whites to say they definitely would report a crime. 8 Obviously, this is no recipe for improving community safety.

This mistrust in law enforcement on the part of Black and non-Black Americans has led to “defund the police” movements across the nation. Their proposals range from reforming police departments and focusing on community policing to calls for reducing police funding and allocating more dollars for social or job services. The most radical of these proposals call for the elimination of police departments altogether and has led to the demonization of police officers across the country.

America is facing a crisis of conscience. Completely abolishing police, however, would be an extreme response that would make our nation and communities less safe. First, exposure to violence is associated with a host of negative outcomes, including poor mental and physical health, problematic behaviors, poor academic performance and educational attainment, and even poor cognitive development. 9 Police help to reduce violence and prevent these outcomes. According to academic research on police hiring grants in 2009, cities that experienced a 3.2 percent increase in police saw a 3.5 percent reduction in crime. 10

Second, a small number of officers make up the majority of complaints of wrongdoing. One study of eight cities assessing complaints filed from 2004 to 2008 found that 14 percent of police officers accounted for essentially all complaints alleging improper use of force, and just four percent accounted for half the complaints. 11

Indeed, some experts have suggested that one reason murders, shootings, and gun violence were up last year is that “violent criminals have been emboldened by the sidelining of police,” due to “blowback” in the wake of Floyd’s death. 12 Yet, Americans undoubtedly fare better when crime is reduced, both individually and collectively. As demonstrated in The Geography of Social Capital in America, violent crime rates at the county level are strongly negatively correlated with social capital. 13 This reflects the inability to maintain social order, meaning that crime has negative ramifications for community wellbeing.

The key is therefore to increase accountability for bad apples while preserving the benefits that police on the whole provide to American communities. Accomplishing this goal would require a multitude of policy changes: reforming police unions, changing state and national laws that unreasonably shield police from liability, and removing the perverse incentives currently in place that encourage bad behavior.

The Harm Caused by Police Unions

Police unions shield bad apples from accountability by leveraging their power to protect the small minority of officers who have betrayed the public trust. All unions are intended to protect their members, but in so doing, they create costs for members and non-members alike. To the extent that they protect their own members from losing employment and grant special protections—without regard to work output, skill, and job performance, based solely on union membership—unions can be said to make society and the economy less innovative and efficient. Where this occurs, it makes private-sector union members less accountable employers, and employers less accountable to consumers. 14

In the case of public-sector unions (like police unions), the same dynamic has potential to make union members less accountable to the government entities they serve, which in turn are rendered less accountable to the taxpayers who pay their salaries. Public-sector unions accumulate power as a consequence of the monopolistic nature of government services, but also due to the relationship between public-sector unions and the public officials they help elect. This relationship can produce a serious ethical issue, as union members often have the opportunity to vote for and otherwise support the very politicians who are in charge of their contract negotiations. 15 Unions consistently rank among the most politically active organizations in both local and national elections, often using the money collected from union dues to fight against policies that could otherwise improve government efficiency, but might jeopardize the job security of some union members. 16

Police unions provide officers protections that prevent accountability. Derek Chauvin – the Minneapolis police officer who killed George Floyd – had previously faced at least 18 complaints of misconduct without facing any serious discipline. 17 From 2012 to 2020, only 12 Minneapolis officers faced discipline out of 2,600 misconduct complaints. Shockingly, the most serious of those 12 disciplinary actions was a 40-hour suspension. 18 Quite predictably, some portion of all complaints filed against police officers will ultimately be deemed meritless. Significantly, however, the protections offered by police unions extend far beyond those necessary to shield officers from frivolous or unfounded complaints. 19

In Parkland, Florida, Sergeant Brian Miller was rehired with full back-pay two years after being fired for neglect of duty for failing to intervene in the Douglas High School shooting and waiting 10 minutes before he even radioed for help. 20 Similarly, police unions came to the defense of New York Police Department officer Daniel Pantaleo after he killed Eric Garner with a chokehold, which had been banned by the department for over 20 years. 21 /a>

A 2017 investigation from the Washington Post also found that 45 percent of officers fired for misconduct in Washington, D.C. were rehired on appeal, as were 62 percent of officers fired in Philadelphia and 70 percent of officers fired in San Antonio. 22 Based on a review of 36 police departments, the study concludes that just under one quarter of all officers fired for misconduct are rehired, often by arbitrators, on appeal. 23

Furthermore, an examination of police prosecutions from 2009 to 2010 found that, out of 8,300 credible reports filed against 11,000 officers, only 3,283 resulted in criminal charges. Only about 1,000 of those officers were convicted, and only 36 percent of those convicted were eventually incarcerated. Among the officers accused of either excessive force or killing a civilian, only 7 percent were charged with a crime. Comparing conviction rates of law enforcement to the general public, the study found that, overall, officers face conviction rates and incarceration rates half that of the overall population. 24

Collective bargaining plays a significant role in shielding police officers from the consequences of their misconduct, exacerbating mistrust in the police. In a review of 178 police union contracts, Stephen Rushin found that 88 percent included at least one provision acting as a barrier to disciplinary action. These provisions “limit officer interrogations after alleged wrongdoing, mandate the destruction of officer disciplinary records, ban civilian oversight of police misconduct, prevent anonymous civilian complaints, indemnify officers in civil lawsuits, or require arbitration in cases of disciplinary action.” For instance, contracts may enforce mandatory waiting periods before an investigation may occur, require that officers see the evidence against them before being interrogated, prohibit interrogation if too much time has elapsed after an incident, and limit the consideration of disciplinary records in future employment actions. 25

Furthermore, mandating that disciplinary action be decided through closed-door arbitration often results in reduced disciplinary penalties against officers found guilty of misconduct. 26 One review found that 73 percent of police union contracts allowed for decisions to be appealed to an arbitrator, 70 percent gave arbitrators extensive power to revisit previously decided cases, and over half gave officers or unions the power to select that arbitrator. 27

Several studies have gone further to demonstrate a causal link between these police union protections and police misconduct. Utilizing the fact that police union formation in the United States was staggered both over time and locality, researchers Rob Gillezeau, Jamein Cunningham, Donna Fair, and Alex Thomson estimate that gaining access to collective bargaining rights is predicted to increase police killings of civilians by about 60 to 70 per year. 28 Additional research suggests that cities with increased police protections, measured both by union contracts and state laws protecting police, are more likely to experience increased instances of police abuse and police killings of unarmed civilians. 29 Finally, an examination of police misconduct in Florida before and after sheriffs’ deputies were granted collective bargaining rights found that collective bargaining led to a 40 percent increase in complaints of violent incidents, which implied an increase of roughly 12 violent incidents per year across the 58 agencies examined. 30

A recent survey from the Cato Institute revealed that the American public is largely against these union protections. For instance, 84 percent of those surveyed opposed erasing police records of misconduct after a set period of time, and 62 percent opposed collective bargaining related to police misconduct. 31

It stands to reason that, by reducing the cost of bad behavior for rogue police, excessive police union protections weaken the trust between communities and the officers sworn to protect them. Booker Hodges, the assistant commissioner for the Minnesota Department of Public Safety, said it best by acknowledging that “a union is required to represent an officer, but … publicly defending an officer who has clearly violated our oath of office strains neighborhood relations and erodes trust.” 32

Reforming Police Unions for Greater Officer Accountability

Several reforms can be made to police unions in order to establish greater accountability among police officers, which is the first step to rebuilding trust between officers and the communities they serve. First, state legislatures could limit the ability of unions to negotiate favorable conditions around disciplinary procedures that unfairly advantage their members. 33 As demonstrated through research, these union protections are positively associated with increased instances of violence.

In some cases, courts may limit police unions’ abilities to negotiate on terms and conditions of employment related to employee accountability, for instance by following the example of New York. In 2006, the New York Court of Appeals ruled that “police discipline may not be a subject of collective bargaining.” Instead, the court ruled that police discipline falls under the authority of individual municipalities. 34

Absent court action, some suggest that Congress could take action to increase police union accountability. 35 While policing is and ought to be first and foremost a local issue, the federal government has become increasingly involved with policies that directly impact local police departments. Data show that federal funding to state and local governments for the “administration of justice” has soared from roughly $570 million in 1990 to a projected $8 billion in 2021. 36 This increase in funding of over 1,000 percent reflects an immense rise in federal influence over local policing.

Federal funding directly impacts local police departments in a number of ways. In 2020, the Bureau of Justice Assistance (BJA) provided state and local law enforcement agencies with $343 million through the Community Oriented Policing Services (COPS) program, which awards grants for hiring new officers, training, and other police support functions. 37 Since 1994, the COPS program has provided funding to 13,000 jurisdictions, and each year thousands of police departments continue to apply. 38

Similarly, the BJA awards $340 million annually on average to the states through the Edward Byrne Memorial Justice Grant (JAG) Program to support law enforcement, courts, corrections, drug treatment programs, victims assistance, and mental health programs. 39 Additionally, in 2019, states received $3.1 billion in federal grants for “public order and safety.” 40

The extent of federal involvement in state and local law enforcement (through funding and otherwise) should itself be re-evaluated, given that (1) the Constitution does not delegate police powers to the federal government, but to the states, and (2) federal intrusion has a known tendency to blur lines of accountability for state and local law enforcement agencies.

While proposals exist that would condition federal grant money on accountability measures, 41 ideally, states and localities should take it upon themselves to increase police accountability. For instance, they could mandate that collective bargaining agreements for police be made public and bar features of police union contracts that discourage accountability. These barriers include: 42