Accountability-Based Policing: Using Measures In Addition to the Exclusionary Rule

Professor David Harris of Pittsburgh Law School recently published an article entitled, “How Accountability-Based Policing Can Reinforce – Or Replace – The Fourth Amendment Exclusionary Rule.” See (2009), 7 Ohio State Journal of Criminal Law. He proposes that in light of recent attempts before the U.S. Supreme Court to repeal the exclusionary rule altogether, legislatures should require the use of newly-developed police accountability mechanisms by law enforcement officials.

Professor Harris refers to the controversial decision of Justice Scalia in Hudson v. Michigan to highlight the dangers of abandoning the exclusionary rule all together. That ruling seems to have suggested that police generally follow the law, and when they do not, other robust remedies less costly to society than the exclusion of evidence to ensure that officers change their behaviour and obey search and seizure rules.

Professor Harris challenges Justice Scalia’s argument that the exclusionary rule has outlived its usefulness because police officers now almost always do their jobs by and large in accordance with those rules. He relies on empirical studies by criminologists to shows that Justice Scalia’s assumptions simply do not square with reality.

He suggests that instead of repealing the Fourth Amendment’s exclusionary rule, the legislatures should require the use of newly-developed mechanisms to ensure police accountability.

To this end, he proposes the following:

First, that a system for tracking police search and seizure activity, based on successful work on early intervention systems now used to head off police misconduct, holds great promise for advancing the ability of supervising officers to assure that those under their commands obey the law.

Second, that strengthening the ability of members of the public allegedly subjected to police misconduct to bring suit for redress in federal court would create real incentives for better police behaviour. This would do much to address the issue of Fourth Amendment violations that uncover no evidence, making the exclusionary rule an inapplicable remedy.

Third, that new technologies can enable police departments to make video and audio recordings of nearly all police activity.

Posted by Minoo Alipour Birgani (Law III)

Implicit racial attitudes and law enforcement shooting decisions

This article outlines a study which explores both the implicit and explicit racial attitudes that are linked with racial profiling and police shooting decisions within law enforcement. The author, Professor Katherine Tuttle summarizes a wide range of cognitive and psychological studies which all demonstrate that both White and Black individuals often associate black with negative stereotypes and white with positive stereotypes. Tuttle contests that because enforcement officers actually make shooting decisions, and undergo rigorous training on how to handle dangerous situations, it is important to study the police population separately in order to draw conclusions about variables influencing their behavior – an approach which has not been previously utilized. Therefore, Tuttle’s study compared the attitudes of college students to that of a group of police cadets who were all within 12 months of being hired (therefore, their racial attitudes couldn’t be attributed to the experiences they had working). The two groups were tested on a number of different racial dimensions and it was concluded that the police cadets not only presented much stronger negative racial biases towards Blacks than the students did, but were also more biased than a large, representative population. Tuttle concluded that while studying implicit attitudes that effect police behaviour present an exciting avenue to pursue, her research demonstrates that explicit attitudes are still very significant factors in the prediction of decisions making and should be continually examined.

The article can be downloaded at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434233

Posted by Claire Doughty (Law II)

Does public attention on racial profiling impact police behaviour?

In "The Environmental Context of Racial Profiling", (2009), 623 ANNALS of the American Academy of Political and Social Science 52, Patricia Warren and Amy Farrell report their findings on the role of environmental factors like media scrutiny on reducing racial profiling. Based on their assessment of stop and search data from Rhode Island, the authors conclude that "[w]hen monitoring in the form of media attention is coupled with increased administrative accountability, the scrutiny that is generated apparently yields more equitable law enforcement."

"Policing gun crime without guns"

This is the title of a new article by Professors Tracey L. Meares of Yale University and Andrew Papachristos of the University of Massachusetts. In it, the authors "discuss the policy potential of a unique intervention effort that polices gun offenders with a hybrid mix of traditional enforcement and models of normative change." In particular, they examine the impact that Project Safe Neighborhoods (PSN), a billion-dollar federal program to promote new ways to reduce the number of gun-crimes, has had on the significant reduction of gun homicides in Chicago.

Posted by Professor Tanovich