Defining Law Enforcement Problems That We Can Solve

This is the sixth of Civic Way’s series on reconstructing American government. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience working with governmental agencies across the US.

Highlights:

• Our law enforcement challenge is not confined to police bias and misconduct
• The current debate has obscured the sad truth that, for many years, we have defunded (or at least underfunded) services that are integral to the success of law enforcement and the safety of our communities
• Our fragmented, hyper-localized law enforcement system is not only inefficient (and, in some cases, too tolerant of mismanagement, fraud and abuse), but a huge barrier to police reform
• We expect too much of our law enforcement system, especially given its balkanization and our decades-long defunding of complementary strategies, programs and tools
• We will not likely succeed in reforming law enforcement without first transforming the insulated, paramilitary and largely unaccountable culture that has infected many agencies
• To maximize the prospects of real police reform, we must first build a coalition of those who want to be part of the solution, not just the aggrieved, but the errant (and converted)

Introduction

This is the second of three position papers from Civic Way on law enforcement reform. The last piece offered a framework for advancing reform. This piece addresses the most serious challenges of our law enforcement system and the third and final piece offers some common-sense recommendations for reforming law enforcement.

The first step in fixing a problem is to diagnose the problem. We believe that the problem to be confronted is much bigger than police violence or bias. Sure, police violence and racism are grave issues, but they are only part of a broader challenge facing our nation. To reform law enforcement in a systemic, far-sighted way, we must first fully grasp the scope and magnitude of the problem we are striving to fix. That is the purpose of this commentary.

Rampant Law Enforcement Spending

We spend a lot on law enforcement (some estimates range as high as $100 billion per year), and it may be more than we can afford, especially considering our other needs. Typically, police departments consume about 40 percent of municipal budgets, but this ratio can vary extensively by city (e.g., 35% in Houston and 54% in LA). As a percent of GDP, the US spends more on domestic public-safety programs than nearly all of its peers (i.e., other wealthy nations).

Nationally, our crime rates—violent and property—have plummeted over the last 30 years, including in many large cities (e.g., DC, Dallas, Los Angeles, New York City, San Diego and San Francisco). Many police advocates point to this stunning decline in crime in defending large police payrolls. However, most crimes aren’t reported and most reported crimes aren’t solved. In addition, our progress has been uneven, especially for certain populations (e.g., Black men aged 15-24) and jurisdictions (e.g., Alaska, New Mexico, Baltimore and St. Louis). Finally, media reports often distort public perceptions about crime, exacerbating public fears and, in turn, increasing demands for larger police budgets (well beyond what the data will support).

And our public budgets appear to value police officers more than other public sector employees regardless of the work they do. We tend to compensate police officers (especially unionized officers) better than other public employees. In the New York metro area, for example, the average annual income is about $83,000 for police officers (contrast $45,420 for Emergency Medical Technicians, $38,250 for Nursing Assistants and $30,060 for childcare workers). And police benefits are better, especially in some cities (e.g., New York City police receive health insurance at no cost, unlimited sick leave at full pay and a $1.75 million pension after 22 years of service).

The debate about defunding the police often overlooks two key factors. First, the US spends too little on services that are integral to the success of law enforcement, that is programs that could alleviate the underlying conditions of crime (e.g., poverty, mental illness and homelessness). Second, our inexorable shift from preventive investments like education and social programs to remedial costs like defense and police has made our law enforcement dollars work a lot harder than they should.

To illustrate, our aggregate police, corrections and court costs are twice that of our public aid costs. We spend nearly $31,300 per year per inmate versus only $12,201 per year per primary/secondary school pupil. And the US spends far less on social services than its peers. For instance, we spend nearly 19% of our GDP on social programs (contrast 31% for France and 25% for Germany), and about one-third of the wealthy nation average on public aid. Sadly, while the US violent crime rate has fallen in recent decades, our population-adjusted crime rates remain higher than those of other Organization for Economic Cooperation and Development (OECD) nations.

Unbridled Agency Sprawl

This issue receives little attention, but our law enforcement system is extremely fragmented. With over 18,000 non-federal entities (over 80 percent of which are in city or county governments) and over 700,000 officers, our law enforcement system is more clutter than system. This hyper-localized patchwork is both less efficient and effective than it should be.

With 50 statutory frameworks (some of which are vague or outdated) and thousands of local policies, it is virtually impossible to maintain any consistency across jurisdictions, let alone fuse agency cultures. Even within a single metro area, agencies may recognize dramatically different enforcement standards and strategies. And, within a single agency, especially a small one, police officers may have to perform tasks well beyond their comfort zones with paltry guidance.

This fragmentation also contributes to troubling human resource issues. Hiring criteria and practices vary materially. Some agencies, for example, hire ex-military even when the job calls for different skills (according to the Marshall Project, ex-military officers are more likely to commit fatal shootings). Some agencies—especially elected sheriffs—use long-discredited practices like patronage and nepotism. Many agencies hire officers with prior disciplinary records (despite evidence suggesting that officers with such records are more likely to engage in future misconduct).

While law enforcement licensing and certification have improved in recent decades, they remain inconsistent and, in many cases, inadequate. At least 660 state and local law enforcement academies offer basic training to entry-level recruits (larger law enforcement agencies usually maintain their own academies and smaller agencies typically use state or regional academies). Academy programs vary considerably from 360 hours of training in Louisiana (less than that state requires for a certified barber) to 1,120 hours in Washington DC, but most employ some paramilitary training techniques.

On-the-job training practices also vary widely. While some agencies have invested heavily in developing rigorous training curricula, many have minimal training offerings (e.g., manuals with video links). Some still use a “read and sign” approach under which officers merely acknowledge their receipt of new policies. This lax approach is indefensible, especially for low-frequency, high-risk law enforcement activities (e.g., use-of-force and emergency driving situations).

Of these 18,000 law enforcement agencies, the 3,100 county sheriff offices merit special attention. Unlike police chiefs, most sheriffs are elected (excepting Hawaii, Rhode Island and a few urban counties). Nearly all sheriffs are white males. In most counties, sheriff offices have little oversight and accountability. Their duties vary, but most patrol unincorporated areas, secure courtrooms, manage jails, transport inmates and serve warrants. Their operating practices vary widely (in some states, like Kentucky, elected sheriffs are largely exempted from state certification standards). And many sheriff offices have been plagued by mismanagement, fraud and abuse, especially involving discretionary funds and civil asset forfeitures.

Unreasonable Expectations

When we focus solely on the video clips of police abuse and media reports documenting police racism, our first instinct may be to view all police as transgressors. But, after we step back and look at the big picture, we might see most police officers differently—as public servants trying to do their jobs in a system that may very well preordain their failure.

A lot of us have demanding jobs (whether we are paid or not). But most law enforcement officers contend with issues that can make their jobs especially precarious, such as:

• They (like other emergency workers) often serve the public at great risk
• They face the world’s most heavily-armed civilian population
• They use a police patrol model that, unlike the old beat cop model, does little to reconcile police agencies and the neighborhoods they serve
• They are trained and equipped for violent situations, but over 90 percent of policing calls involve non-violent matters (e.g., minor disturbances, homelessness and traffic incidents)
• They are too often primarily evaluated on arrest rates (not surprisingly, they make 13 million arrests per year—over 80 percent of all arrests—for misdemeanors like trespassing and disorderly conduct)
• They often work for local governments that rely too much on fines and delinquency fees, which can encourage revenue-driven policing, especially in low-income and minority neighborhoods
• They are often part of police forces, especially in urban areas, that aren’t sufficiently representative of their communities

In short, most state and local governments expect far more of their police than they are equipped to deliver. We expect them to preserve order and keep us safe, but we don’t make adequate investments in strategies that could help them meet those expectations. In effect, we expect our police to handle situations caused or aggravated by societal failures we have allowed to fester (e.g., poverty, inequity, homelessness, inadequate schools, inadequate mental health facilities and frayed social programs). We assign our police a mission that greatly increases the odds of failure.

Misaligned Organizational Culture

Two trends have shaped organizational cultures that, in turn, have significantly influenced police conduct and damage the relationship between law enforcement agencies and the citizens they serve. The first trend is the pronounced militarization of law enforcement agencies. The second is the rise of powerful (and often reactionary) police unions.

The militarization of state and local law enforcement agencies, frequently with strong bipartisan support, has adversely shaped their organizational cultures and operating practices. Up to 8,000 agencies possess nearly $2 billion of surplus federal military equipment (1,100 law enforcement agencies possess mine-resistant vehicles). After the 2014 Ferguson, Missouri protests, it was estimated that about $9.4 million worth of military-grade equipment was bought in St. Louis County with DHS preparedness funds. In 2020, Homeland Security will supply over $1 billion of such hardware to state and local agencies, an increase from 2019.

Police unions represent one of the great paradoxes of American politics. Conservatives attack public sector unions, but steadfastly support police unions. In contrast, liberals champion public sector unions, but remain wary of police unions. National groups like the Fraternal Order of Police and large city police unions like New York City’s Police Benevolent Association (the world’s largest municipal police union) have improved their members’ compensation. They have shown a knack for exploiting public fears about crime and have leveraged their political clout to weaken accountability measures and promote shrill, racist candidates (e.g., Wallace in 1968). It is incontrovertible that many police union leaders pose a fierce threat to police reforms.

Why are these trends important? Changing organizational culture is a prerequisite to police reform. If we want our local governments to improve how they serve and interact with our communities, we will have to realign the organizational cultures of those governments with the people they serve. This will require us to redesign the traditional police patrol model and the patrol jobs themselves, but it also will demand that we improve the culture in which our law enforcement officers operate.

The Corrosiveness of Police Violence

There is growing alarm regarding the US’ high incidence of police violence. US police killed about 1,000 people per year during each of the last five years, at per capita rates much higher than its peer countries (e.g., three times more than Canada, four times more than Australia, 16 times more than New Zealand, 25 times higher than Germany and 67 times higher than the UK). Many US cities have subject to federal consent decrees for undue force and weak oversight (e.g., Albuquerque).

The disproportionate impact of police violence on certain disadvantaged groups is well-established. African-Americans, especially men and teen-aged boys. Hispanics. Native Americans. Asians. Pacific Islanders. The mentally ill and homeless. The disabled. Worse yet, according to Mapping Police Violence, one of the few groups trying to track police use-of-force data in the absence of acceptable government data efforts, only about one percent of the police officers involved with these deaths are criminally charged (fewer are convicted).

There are many potential reasons for police violence, some noted above (e.g., socio-economic failures, militarization, gun violence and outmoded patrol models). Weak use-of-force laws, training and accountability contribute further. We can disagree on the causal factors and their relative proportionality, but should be able to agree (regardless of our political persuasion) that police violence costs US taxpayers dearly.

State and local governments spend millions on police litigation every year. While (disgracefully), there is no national system for reporting such data, local media accounts provide a glimpse. From 2003 to 2019, the City of Minneapolis paid over $25 million for police misconduct. In 2018, the City of Chicago spent over $100 million on lawsuit settlements. And, since most cities maintain self-insurance policies, they must tap taxes or issue debt to cover police litigation costs. In 2017, for example, the City of Chicago issued $225 million in general obligation bonds for police settlements. To balance their budgets, most cities must then cut (defund) non-police programs or services.

The Fiction of Police Accountability

Calls for more government accountability come from all corners. Liberals and conservatives alike insist on greater accountability and transparency in all things governmental. Yet, somehow (and often with the complicity of reactionary police union leaders and the politicians they intimidate), police accountability remains little more than a talking point.

The signs are unmistakable. Many agencies lack robust internal early-warning systems for identifying performance problems. Even where policies are clear, compliance cannot be assured (e.g., a failure to enforce body camera policies). The qualified immunity doctrine that shields officers from most lawsuits survives despite the opposition of such diverse groups as the ACLU, NAACP and Cato Institute. Only three states—Florida, Georgia and North Carolina—have active police decertification programs and they account for half of all decertified officers during the last five decades.

Perhaps the most mystifying (and inexcusable) manifestation of weak police accountability involves the lack of basic law enforcement data. Many states restrict public access to disciplinary files, use-of-force investigations, wrongful arrest/search records and even routine policing data (e.g., body-camera footage). Only one state—Utah—requires local agencies to report forcible entries and tactical-team deployments. National law enforcement data systems, like the FBI’s National Use-of-Force Data Collection system, are voluntary and unreliable. The US Department of Justice still doesn’t require local use-of-force data or take steps to ensure the reliability of that data. This cavalier approach ultimately damages the reputation of police and undermines public trust.

A Call for Inclusive Police Reform

The George Floyd protests were compelling, and for many reasons. First, the protests went viral, spreading from large cities to small towns and all regions of the US and then throughout the world. Second, they were incredibly diverse, involving people of all races and cultures. Third, they were led by the young, displaying an energy and spontaneity that nourished hopes for positive change. Finally, with a few exceptions, they were peaceful.

Even watching the protests from afar (as most of us did), we could not help but share the despondency and anger about police violence. Videos of horrifying incidents, like George Floyd’s killing, filled our screens. Slogans like “defund the police,” abolish the police” and “Black Lives Matter” dominated the streets. Calls for reforming the police abounded, but sparked many questions. What is meant by defunding or abolishing the police? What should reform entail? How do we get there?

At Civic Way, we believe that, above all else, we must honestly confront the law enforcement problem—without bias, preconceived notions or fanciful delusions. We also must define the need for police reform in a way that maximizes the prospects of change. That will mean, among other things, building a coalition of those who want reform and want to be part of the solution, even if they have been part of the problem. A coalition not just of the aggrieved, but of the errant (and now converted).

In our next commentary, we will outline strategies—both new and old—that we believe should be considered by those who sincerely desire law enforcement reform.