October 23, 2020
The George Washington Law Review’s 2020 symposium ended with an inspiring panel discussion titled “The Path Forward” and focused on finding solutions to injustice in American policing. With Professor Kate Weisburd moderating the panel, Professors Stephen Rushin, Cynthia Lee, and Monica Bell explained some of their research and efforts to change policing practices. Professor Weisburd began by describing how the COVID-19 pandemic and George Floyd’s death ignited widespread recognition of where the state has failed to keep the American people safe. Furthermore, these events have highlighted our country’s failure to reckon with our history of colonialism, slavery, and patriarchy. Motivated by these harsh truths, cities and states are reevaluating their criminal justice systems and policing practices. Still, there is a question of how efforts for reform can stick and lead to true change. With that, Professor Weisburd handed things over to our panel of accomplished scholars to explain their ideas and efforts for reform.
Stephen Rushin, law professor at the School of Law at Loyola University of Chicago, discussed his research focusing on women’s representation in American police forces. Professor Rushin highlighted recent commentary suggesting that police forces hire more women to reduce issues in policing associated with hypermasculinity, including unnecessarily physical and violent encounters. While it is a valuable effort, Rushin posits that simply hiring more women is unlikely to have a transformative effect on policing on its own, echoing Professor Lopez’s arguments from the first panel discussion. Not only are too few women in police departments, but police departments are struggling to attract new candidates for job positions, including women and applicants of color.
Rushin discussed three common issues creating this systemic underrepresentation of women in American police forces. First, police recruitment materials often heavily emphasize masculinity by depicting weaponry, violence, and military service, all of which disproportionately appeal to men. Second, civil service testing often fails to account for many qualities that matter in effective policing. Recruitment tests often emphasize qualities like upper body strength while neglecting important traits that are needed in a variety of scenarios, such as conflict de-escalation. Third, Rushin pointed out that many departments lack the employment benefits and protections that matter most to women. This problem partly arises from the lack of female representation itself, as these issues are of lower priority when labor negotiations and union bargaining efforts take place.
Finally, Rushin offered suggestions on how to alleviate these issues. Namely, local governments need to take interest in police recruitment efforts, rather than simply leaving the matter entirely to the police departments. When communities are engaged in the process, departments will hire more officers representative of the community and provide benefits that appeal to female applicants. Furthermore, police departments must develop an internal culture where women have opportunities for professional success.
Next, Cynthia Lee, law professor at GW Law and host of the Symposium, discussed the necessity for legal reform as a “vehicle for change.” Professor Lee noted that legal reform efforts are often critiqued for not going far enough to combat injustice in policing. While legal reform is not a perfect solution to all of the problems in American policing today, Professor Lee argued that it can and should play a role in holding police accountable when they use deadly force in unjust ways. Professor Lee first discussed the defense of “justifiable force” often invoked by law enforcement officers when charged with a crime related to a physical encounter. Use of force statutes are highly inconsistent across states, but most focus on whether the officer believed the use of force was reasonable. This focus is problematic, however, as juries may find officers’ decisions reasonable even if there were alternatives the officer could have chosen. Once an officer says that he feared for his life, the jury’s focus shifts to the victim’s acts, rather than the officer’s acts. Part of the problem, Lee argues, is that use of force statutes often provide no guidance to the jury on how to make these difficult determinations.
Professor Lee has long researched these issues and recently authored an article in the Illinois Law Review proposing a model statute designed to refine use of force analysis. Lee’s model statute heavily influenced D.C.’s new Comprehensive Policing and Justice Reform Emergency Amendment Act of 2020. The Act is unique because it inserts imminence, proportionality, and necessity elements into the analysis of whether a police officer’s use of force was justified. First, an officer are prohibited from using deadly force unless the officer reasonably believed deadly force was immediately necessary to prevent death or protect against the threat of serious bodily harm. Second, for deadly force to be justified, the officer’s actions themselves must be reasonable under the circumstances, implementing a proportionality element. Finally, the use of deadly force is prohibited unless all other options have been exhausted, which requires that deadly force be necessary for the officer to use in the situation. The law further instructs juries to consider whether the officer used de-escalation measures before using force and whether any conduct of increased the risk of a deadly confrontation. Lee argues that these legal changes will provide greater guidance to juries and remains hopeful for the effectiveness of legal reform: “Law reform may not be perfect, but it’s better than no law at all.”
Finally, Monica Bell, professor of law and professor of sociology at Yale Law School, discussed a number of the policing reform projects she is working on to understand the purposes, functions, harms, and benefits of policing in a more granular way. Professor Bell discussed her research on how the daily work of policing continues to foster residential segregation. By over-policing low level offenses, policing causes more and more people to develop criminal records that bring with them persistent economic, professional, and housing disadvantages. When police patrol the borders of different neighborhoods, the notion of what they find “suspicious” too often goes toward what they find phenotypically out of place, the classic example being a Black person in a “white neighborhood.” Additionally, border policing simply reinforces segregation by distributing economic value in a racialized way. Through a study Bell and her colleagues conducted in Cleveland, she found that much of what suburban white residents liked about the police service in their neighborhood was not related to policing crime, but instead performing general public service tasks (e.g. attending to a fallen power line).
In closing, Bell discussed how law students and lawyers can get involved in furthering the cause for racial justice. With recent calls to “Defund the Police” and similar abolitionist causes, it can be confusing and difficult for law students to understand what can be done within the legal system. Bell suggested that the main effort should be to fight for changes that reduce harm, wherever they may be. Lawyers and researchers ought to focus on what alternatives are available to the current legal system. At the same time, Bell argues that a broad vision is important, and the lack of a coherent vision for criminal justice reform has hamstrung progress in the past. To solidify a vision for the future, lawyers and students should get involved in their communities and write to spread the news about how our legal system works, how it fails us, and develop models of change to make them work correctly. By questioning the link between policing and public safety, we can more clearly see the opportunities for change and the paths to make the system more just.
In the question-and-answer period, a student asked the panelists what role litigation can play in police reform, seeing as civil rights actions brought under the Federal Tort Claims Act (“§ 1983”) face stiff barriers against doctrines like qualified immunity. Professor Rushin noted that this was a fair skepticism, but offered that even if the rules are imperfect, § 1983 claims can still be effective in holding officers accountable. Additionally, he suggested that litigation can help ensure union contracts and bargaining processes lead to just policies. Professor Bell emphasized that there is no “right way” to pursue transformation, and urged advocates to be nimble and escape the “process paradigm” that might inhibit creative challenges for justice. Professor Lee echoed this sentiment, suggesting that pursing many paths of reform is the best way to tackle the crisis in policing today.
This panel review was authored by Austin Martin.