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The Overlooked Potential of State AGs for Police Reform

Attorneys general have the power to oversee the police departments in their states that need to be turned around. Solutions handed down from Washington are slow, cumbersome and unevenly applied.

Austin police officers line up as protesters moved through downtown Austin two weeks ago. [BRONTE WITTPENN/AMERICAN-STATESMAN]
As American cities are torn by protests over the deaths of George Floyd and other African Americans at the hands of police, much of the nation's attention is focused on remedies from Congress. In the House alone, some 50 bills are under discussion to address injustices that have sparked anger and despair.

Some of these reforms are much needed, such as changing a qualified immunity rule for law enforcement officers that was invented by the Supreme Court and imposed on states, and halting the Justice Department program that incentivizes police departments to engage in military-style campaigns against illegal drugs and immigrants. But until state leaders — and particularly attorneys general — step up, things aren't going to get much better.

To understand why, consider the fact that there are more than 700,000 state, county and city law enforcement officers across the United States, and the vast majority of them serve rather than prey on their communities. We know this because data reveals that even in communities with serious policing injustices, a small number of officers commit the majority of abuses. Further, as law and policing expert Stephen Rushin of Loyola University notes, a relative handful of police departments across the country are the loci of systemic corruption and abuse.

While "a handful" might sound easily fixed, we must keep in mind there are roughly 18,000 law-enforcement departments across the country. It's tempting to think that a problem of that scale requires a federal fix. What we need, however, is not 50 bills from Congress aimed at identifying and punishing bad apples but 50 states whose elected leaders use the powers already afforded them to oversee and reform the systemically rotten barrels from which these apples keep emerging.

A clue to this largely neglected state authority can be found in the aftermath of the 1992 Los Angeles riots, when Congress authorized the Department of Justice to investigate and ameliorate police departments engaged in a perceived pattern or practice of abuse. Though this new power spawned scores of investigations that led to dozens of expensive consent decrees and multi-year monitoring, and arguably catalyzed significant, lasting reform in Los Angeles and a handful of other cities, it's also slow, cumbersome and unevenly applied from one presidency to the next.

It also inspires resistance, as few local officials appreciate lawyers from Washington, D.C., looming over them. But their cooperation, as legal scholars Samuel Walker and Morgan Macdonald note in their extensive studies of these interventions, is essential to changing a citywide culture that induces officers and administrators to become quietly, often self-delusionally complicit in systemic abuse.

A simple alternative to relying on the U.S. Department of Justice to investigate police abuse from coast to coast, however, was provided by Walker and Macdonald a decade ago in the George Mason University Civil Rights Law Journal: States should authorize their attorneys general to do the work we've pawned off to the feds. Not only are state AGs more independent from governors than DOJ lawyers are from presidents, but most of them are accountable at the ballot box.

State AGs are also far better positioned to spot problem departments sooner than lawyers in Washington. And they have more tools to compel cooperative reform, from a power of subpoena often lacking in DOJ investigations to local political and press connections that can shine sustained statewide attention on a local problem.

Those greater state-level powers are essential because scholars agree that a key obstacle to lasting police reform can be found in collective-bargaining agreements that the feds have no power to govern. If you read a consent decree the DOJ secures with a city police department, you're likely to find in the first few sentences a disclaimer that nothing in the agreement contravenes the existing police union contract.

Advocates from both the left and the right have identified this as a major problem. Rushin's review of more than 650 police union agreements, for example, found that officers accused of wrongdoing frequently have two days or more to get their stories straight before being interrogated. Further, union contracts typically allow officers to have their disciplinary records expunged. Police argue that this is only fair, given how often they're wrongly accused by criminals seeking vengeance or lighter sentencing. The data indicates, however, that officers with a pattern of repeated accusations — even if none are well substantiated enough to be proven — are more frequently convicted of a subsequent, serious crime. The Minneapolis officer who allegedly choked George Floyd to death, for example, had 18 prior complaints filed against him.

It's possible to change police union contracts to allow for identification of potential wrongdoers and swifter punishment for police crimes while maintaining income, tenure and due-process protections. Twenty years ago, after police in Riverside, Calif., killed 19-year-old Tyisha Miller with 12 gunshots, community outrage erupted at what many saw as a pattern of excessive police violence against minorities. In response, the California Legislature authorized the state attorney general to wield DOJ-style powers. The result was five years of court-enforced monitoring that required Riverside police to wear body cameras and undergo training in de-escalation while imposing new policies for handling civilian complaints against officers, among other reforms. Civilian complaints began to decline soon after the monitoring went into effect and have trended downward ever since.

Authorizing state AGs to do the work of policing the police is not only likely to reform more bad barrels faster, but it's consistent with the federalist vision of the Founders. It's also something both liberals and conservatives can support. At a time when everything seems to divide our country along partisan lines, there's no excuse not to pursue a sensible policy we can agree on. All we need is for state governments to step up and do what's right.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing editors or management.

Tony Woodlief is a senior fellow in the State Policy Network’s Center for Practical Federalism and the author of the book I, Citizen: a Blueprint for Reclaiming American Self-Governance.
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