Saturday, March 20, 2010
Rachel Harmon (University of Virginia School of Law) has posted Promoting Civil Rights Through Proactive Policing Reform (Stanford Law Review, Vol. 62, 2009) on SSRN. Here is the abstract:
Reducing police misconduct requires substantial institutional reform in our nation’s police departments. Yet traditional legal means for deterring misconduct, such as civil suits under § 1983 and the exclusionary rule, have proved inadequate to force departmental change. 42 U.S.C. § 14141 was passed in 1994 to allow the Justice Department to sue police departments to force institutional reform. Scholars initially hailed § 14141 as a powerful tool for reducing unconstitutional police abuse. The Justice Department, however, has sued few police departments. This Article contends that § 14141’s greatest potential has been overlooked. Limited resources will always mean that § 14141 can be used to force reform on only a limited number of police departments. But § 14141 could also be used to induce reform in many more. This goal requires a § 14141 litigation strategy designed to motivate proactive reform in more departments than the Justice Department can sue. The key components of this strategy are a “worst-first” litigation policy 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 practice reforms. This Article also explains why this proactive § 14141 enforcement strategy would be more efficient at reducing police misconduct than current enforcement policies, proposals to reform § 14141 by adding private plaintiffs, and alternative mechanisms by which the federal government could regulate police department reform.