David A. Harris (University of Pittsburgh – School of Law) has posted Police Reform Begins with State Law Reform (University of Pittsburgh Law Review, forthcoming) on SSRN. Here is the abstract:
Each time a national outcry arises for change in policing, leaders and advocates look to the federal government for answers and action. While national legislation has sometimes advanced the cause of improved policing, federal action has a limited reach, given that the structure of our government leaves most policing in the hands of the states. Without changes in state law, progress will remain elusive.
Based on a comprehensive survey of the law of six geographically and politically diverse states, this article shows that it is state law that constitutes the greatest barrier to police reform, and it is state law that must change for any fundamental shift to take place. State law interferes with police discipline, sometimes returning officers fired for serious misconduct to duty. State law makes the disciplinary process opaque and consistently results in the watering down or removal of sanctions for violating departmental policies and breaking the law. State law hides body-worn camera footage from the public, preventing the accountability this technology was supposed to produce. This Article exposes the places in state law where state law reform over policing must happen, and it includes five concrete proposals for change. These include eliminating special rights for officers under investigation; giving the public access to all bargaining over contract provisions affecting discipline; changing arbitration procedures concerning discipline; and making transparency concerning discipline and misconduct the default position in all matters.
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