Wednesday, February 3, 2010
Rachel Harmon (Virginia Law School) has posted Promoting Civil Rights Through Proactive Policing Reform at The Legal Workshop. It is adapted from her article here in the Stanford Law Review. Here's the introduction:
Preventing police misconduct often requires changing the department in which it arises, but police departments have proved largely resistant to legal efforts to reform them. A promising federal law, 42 U.S.C. § 14141, permits the Justice Department to sue police departments that are engaged in a “pattern or practice” of misconduct in order to compel structural reform intended to protect civil rights. Unfortunately, although the statute was passed in 1994, it has not yet been used to significant effect. Too few investigations and suits have been brought, and too few departments reformed. The Obama Administration has an opportunity to improve the use of § 14141. But widespread reform cannot be effectively achieved simply by bringing more investigations and suits to compel reform, because such investigations are expensive, resources are inevitably limited, and many departments may need reform. To solve this problem, I propose an approach to enforcing § 14141 that would leverage existing resources to promote proactive reform in more police departments than the Justice Department can sue. More specifically, I advocate a “worst-first” litigation police that prioritizes suits against police departments with the worst indicia of misconduct, and a policy that grants a “safe harbor” from suit for police departments that voluntarily adopt best practices reforms.