Bargaining Away Procedural Protections: An Interview with John Rappaport
In these past five years of freedom I’ve enjoyed since I was definitely acquitted by the Italian Supreme Court, I’ve spent much of my time imagining and advocating for a justice system that is actually just. One with better protections for both victims of crime and victims of the criminal justice system. One that relies less on imprisonment and punishment to address society’s ills. A justice system which abandons unreliable and harmful tools like the Reid interview technique or the polygraph. I’ve been doing my best to educate everyone around me about what is proven to actually work, and what is necessary to deliver equal justice to all citizens, like mandatory video recording of all interviews and interrogations, the PEACE method, the elimination of qualified immunity. The list goes on.
What I hadn’t dared to imagine was a system sans law enforcement, or one in which law enforcement occupies a drastically smaller footprint within society. But others have been imagining that. Today’s advocacy for the defunding or abolition of police is a kind of resurgence of W. E. B. DuBois’, and later Angela Y. Davis’, prison abolitionism, which called for “the creation of an array of social institutions that would begin to solve the social problems that set people on the track to prison.”
In response to the horrific killings of George Floyd by a Minneapolis police officer and Breonna Taylor by Louisville police officers, suddenly a vision of such a system has moved from the academic fringe to become the rallying cry of the masses, seemingly out of nowhere. Believe me, when you spend almost all day, every day, researching, thinking, exchanging ideas and spreading awareness about criminal justice reform, it’s both exciting and disconcerting when suddenly millions of Americans call for such a dramatic overhaul, and cities actually acquiesce, albeit in varying degrees, to the demand. On the one hand, Los Angeles Mayor Eric Garcetti decreased the LAPDs 2020 budget from $1.89 billion to $1.86 billion. On the other, a veto-proof majority of the Minneapolis City Council pledged to dismantle its police department entirely.
University of Chicago assistant professor John Rappaport researches policing and police misconduct. I reached out to him to better understand how we reached this point, and where we can go from here.
Amanda Knox
Can you give a brief introduction of yourself? Who you are, what you do, and what your object of inquiry is?
John Rappaport
My name is John Rappaport. I’m an assistant professor of law at the University of Chicago Law School. Before that, I was a deputy Federal Public Defender for a while. And my primary areas of teaching and research are criminal law and criminal procedure, and in particular, the main focus of my research is on policing.
Amanda Knox
What is your take on what is currently going on across the country?
John Rappaport
It brings a mixture of emotions to me, I think. Obviously, the death of George Floyd itself was tragic. Events that have followed have been tragic, including police excesses. But as someone who spends his career thinking and writing about these issues, there’s a lot of excitement in the air. This is a focal point. There is more interest in, and political pressure for, change than I’ve seen in my entire career. So it’s this mixture. I feel sometimes very heavy about what’s going on. And I feel sometimes very hopeful. I know that American policing is an interconnected system involving so many different people and institutions, and it is very, very difficult to change. I think that political will, like we’re seeing right now, is necessary to make those changes, but I don’t think it’s sufficient. It’s going to require a lot of sustained attention. It’s going to require a mixture of political will and technical expertise. And I just hope that people can stay focused for long enough to actually bring about some lasting changes.
Amanda Knox
How much can you speak to the origin story of modern day policing in the United States?
John Rappaport
I can give you sort of a law professor’s history. Police departments haven’t been around forever. When the country was founded, there really was no such thing as a police department. They didn’t arise until the middle of the 19th century. There were night watchmen and the town crier, and it was a much more privatized system. There was not a public prosecutor in a lot of places. And the way we think of the criminal justice system today, as the responsibility of the state, this is a relatively modern invention. So around the middle of the 19th century, you started to see police departments pop up on the east coast in the big cities. And over time, we developed a system where policing is controlled at the city and county level. What makes us very different from maybe every other country in the world, is that we are an incredibly decentralized system. We have somewhere in the ballpark of 18,000 law enforcement agencies in the country, and that means a lot of variation in policy, in quality of leadership, in quality of the rank and file. Policing first became a really hot political issue in the ‘60s. The Kerner Commission Report revealed the gravity of the complaints within the African American communities about the way that they were being treated by the police and that led to a lot of reforms in the ‘60s. But it also created some backlash. On the heels of the Kerner Commission Report, you saw police unions tighten ranks and lobby states to enact things like law enforcement officer bills of rights. Then Rodney King happened in 1991, which brought police violence back into the foreground. There was another wave of reforms in the early to mid-’90s. It comes back in the summer of 2014, when Michael Brown and Eric Garner are killed, and we see the growth of the Black Lives Matter movement. And then I would say, as someone who thinks about policing non-stop, it receded again. I actually had some new papers out and was trying to get some media attention for them early in the pandemic, and they said, “No one’s really talking about policing right now.” It even went so far as one journalist said, “We’re just not sure that post-pandemic policing is really going to be the same as pre-pandemic policing.” What’s come to the surface is that, pandemic or not, nothing has really changed. The death of George Floyd has refocused us. And this feels on a different level, to me, the amount of attention and the sense of urgency right now.
Amanda Knox
Keeping in mind that the Black Lives Matter movement is a very large movement that’s constituted by a wide breadth of individuals, is there a predominant Black Lives Matter perspective on policing in the U.S., and whether or not policing should be reformed or abolished?
John Rappaport
I don’t see consensus. There’s consensus on the diagnosis that policing is discriminatory and often violent. There is not consensus about where to go from here. Although I think that the use of some of the catchphrases we’re hearing right now, “abolish the police,” “defund the police,” “reform is bad because reform is too incremental,” the use of those catchphrases, which are often quite vague, might actually obscure some underlying agreement. Generally speaking, the two camps are the “Let’s fix it,” and then the people who think “You can’t fix it. You have to throw it out.” Reform has become, among the group of people who identify as abolitionists, something of a dirty word that means you’re basically for the status quo, you just want to make tweaks around the edges. The abolitionists, to the reformers, appear to be radical and unrealistic. That seems to be the divide that I see. And it’s a significant one.
Amanda Knox
Soft-on-policing versus tough-on-policing.
John Rappaport
I don’t think the people who would call themselves reformers would view themselves as soft-on-policing. They want to be very tough on policing, they just believe that the institution of policing will continue to exist. For some of them, it will continue to exist. For some of them, it should continue to exist, but it should be a lot better.
Amanda Knox
What about within the police? Again, keeping in mind that this is a large body constituted by a wide breadth of individuals, is there a predominant police perspective on demands being made by Black Lives Matter activists?
John Rappaport
It’s very difficult to say. On the one hand, the police are in many ways different from the rest of the American population. Their attitudes about, and their understandings of, race relations in the U.S. are very, very different from even white non-police officers in the U.S. population. They tend to have less socially progressive understandings and opinions. As a whole, it appears that the police do not believe that reform is needed as much as the rest of the American public does. But I think that masks a lot of heterogeneity within the police. We’ve all seen videos of police chiefs or rank and file officers marching with protesters, kneeling, and it’s a little bit difficult to tell what percentage of police officers actually think the protesters basically have it right, and we are a problem, and we do need to be part of the solution. What is clear is that there’s heterogeneity, that some police are very much on board with the protesters’ complaints and demands, other police are very much not. As a whole, statistically speaking, they are not. But it’s hard to say how the numbers really break down and how they might change in response to these various protests.
Amanda Knox
Speaking of protests, the police are meant to be neutral facilitators of peaceful protesting, but it’s protesting the police themselves. How does that complicate the situation?
John Rappaport
This is hardly the first police protests that we’ve seen, but the scale here, and the intensity, it’s sort of a perfect storm to bring into contact the protesters and the very people they’re protesting, and I think that’s why we’re seeing a lot of the altercations that we are. I have mixed feelings here. The police officer really needs to be the bigger man, to use the somewhat old-fashioned and gendered expression. We expect of the police a higher degree of patience and civility, so I feel really frustrated when officers are acting aggressively just because they felt disrespected. At the same time, it’s a lot to ask. Police officers are human, and when they’re confronted with such animosity and large numbers, it seems to me quite natural that at least some of them will respond poorly. That is not to excuse it. I still think that officers acting violently towards the protesters should frankly be fired. But I also know that I’m no angel, and I think it’d be pretty difficult to be in their shoes.
Amanda Knox
I think a very legitimate question is whether or not police officers should even be a presence at protests.
John Rappaport
I think it’s very difficult to imagine a situation where the police come in riot gear with shields and scary looking vehicles, and to expect there not to be altercations. But if you give your police the flexibility, or even the encouragement, to reveal to the protesters that, “We’re here for you. We’re here to facilitate what you’re trying to do,” I believe that ultimately, we’re all just human animals. There’s just so much psychology behind all of this.
Amanda Knox
Defunding the police. What does that mean? And what would that entail?
John Rappaport
There are at least two different ways that people are intending the phrase “defund the police.” One way is in an abolitionist sense, although often when you push on it, people who call themselves abolitionists would not say literally “abolish the police,” but “reduce its footprint.” But nevertheless, people are saying, “Let’s incrementally take steps toward getting rid of the police.” I think for other people it’s, “Let’s bring about a massive adjustment of budgeting priorities. And let’s take this money and spend it on teachers. Spend it on social workers. Spend it on counselors, nurses.” It’s more of an adjustment of governmental priorities. And that second version would probably gain a lot of adherence. Even people within academia who work on these issues and don’t consider themselves to be especially radical, and do believe that we should not abolish the police, say it would be better to adjust our budgets and spend on more preventive care. “We ask too much of the police.” I think that’s a real possibility here that has potential promise. I would caution that police departments in the country, and their budgetary situations, are going to be totally heterogeneous, and in some areas, it might make perfect sense to defund the police, but there may also be areas that might be unwise. Especially in smaller areas, it might only make things worse. They might have to reduce salaries and hire even less-qualified officers. They might have to spread people thin. They might have to make people work shifts that are too long. I think we need to be careful. I generally would consider myself to be a supporter of defunding the police in the broad, general sense of at least reexamining municipal budgets and thinking very carefully about whether we should be spending some of this money on something else. But I also think that we need to be open to the possibility that in some places, that answer could be in fact counterproductive.
Amanda Knox
We as a society have an impoverished toolkit. We have a really heavy hammer that treats everything like a nail. Does that mean that we have to rethink the nail, not just the hammer? A broad defunding of the police might necessarily mean a broad decriminalization of most crimes. Do you think that that is a necessary consequence? That crimes of poverty, addiction, and mental illness would necessarily have to be decriminalized?
John Rappaport
I wouldn’t say necessarily. There’s nothing stopping us from living in a society where we have lots of crimes on the books that we just don’t really enforce. Frankly, we already live in a society like that. That said, I do think the two naturally go hand-in-hand. It’s healthier, from a legal perspective, to have the Criminal Code contain things that you’re actually interested in enforcing. And if you want to trim back the footprint of the police, then it might make sense to say we should no longer deem things to be criminal. I think you have the option not to, but anytime you leave a criminal statute on the books and know that you’re not really intending to enforce it, you should start worrying about discrimination in the enforcement of that law.
Amanda Knox
In the reallocation of resources, would this lead to more decentralization or less?
John Rappaport
That’s a good question that I have never heard asked, and I haven’t seen people talking about. It’s at least theoretically possible that there’s some benefits running so many of society’s problems through one institution. There’s all these different kinds of problems, and the state has a record on it, whereas if we do some of the things that the defunding advocates are talking about, now you’ve got all these boundary questions. Different people are calling different departments in similar cases, the records are now spread across multiple departments. It sounds to me like it should be a surmountable problem. But it also sounds like something that, if we’re redesigning the system, we should be thinking about ahead of the fact, rather than after the fact. One thing that comes up in academic conversations about policing is the possibility of actually consolidating police departments. So I’m of the view personally that it’s a bad thing that we have 18,000 different police departments. It makes accountability more difficult. When organizations are too large, accountability can become difficult. But also when organizations are too small, you can have petty tyrants running their little four-person shop and it’s difficult to oversee. I also think that the American media focuses almost all of its attention on big city policing, but a lot of people don’t live in big cities, and a lot of police killings don’t happen in big cities. We focus all this attention on New York, Chicago, LA, and lately, Minneapolis. But boy, are there a lot of other police departments out there doing a lot of arrests, and unfortunately, killing a lot of people. And I’ve talked to some of these small town police chiefs, and they’ve basically admitted in so many words that they run a real discount shop. I’ve asked them, “Do you have a policy on this or that?” and “How do you deal with this kind of complaint?” And they’re just like, “I think you have the wrong image. It’s me, my deputy, and a part-time secretary. We just respond to calls and that’s how things work.” So you can imagine, it might make sense to consolidate some of these departments, either by combining them or rolling them up into the county. You could imagine decisions to consolidate and have just fewer total police agencies. But then the defunding movement could lead to fragmentation of a different kind.
Amanda Knox
What role do police unions have to play?
John Rappaport
Police unions have some positive contributions to make. There is a body of research finding that police unions usually bring about higher wages and better benefits and working conditions for police officers, to attract better people. But when it comes to the accountability side of things, they seem to me one of the biggest problems in American policing. There’s a couple reasons. On a policy level, police unions have a history of opposing reform efforts that are aimed at greater accountability. So this could be something like data transparency, let’s make use of force data public, let’s make civilian complaints data public, let’s make officer disciplinary histories public. The unions have opposed all of that. Historically, many unions were opposed to efforts to diversify police departments along race, ethnicity, or gender lines. Anything that’s seen as potentially putting officers at risk of either being pushed out of jobs, or being subjected to discipline, or fired is opposed at the policy level. One of the things a union does when bargaining collectively with the city is to bargain not only for wages and benefits, but to bargain about disciplinary procedures and a set of procedural protections that officers who are accused of misconduct receive. These protections go way beyond the protections that anyone accused of an actual crime who can be sent to prison receive. Things like, you can’t interview an officer until 48 hours after an incident, after he’s had a couple nights to sleep on it. You can’t interview him until you’ve interviewed all the other witnesses first and he’s gotten to read all of their statements. He’s also gotten a chance to review all the camera footage, dash cam, body cam, things like this. Very, very strict and sometimes short time limits on the period during which you can bring a complaint against an officer. These kinds of protections make it very difficult to fire officers, and even if you do succeed in firing an officer, there are grievance and arbitration procedures built into these collective bargaining agreements that result in many of the officers being reinstated. Now in the abstract, sometimes people make the wrong decision when firing an employee, so I’m not saying that police officers should have no due process, should have no right to contest a termination that was seriously baseless. But in my experience, roughly 50% of all police officers who are fired ended up getting reinstated in arbitration, and I doubt, based on what I’ve seen, that 50% of the terminations were beyond the pale. Instead, I think the arbitrators are given a lot of discretion and there are structural reasons to expect about a 50% success rate. In a lot of areas, the way that the arbitrator is selected is that the union and the city puts up a list of a couple candidates. And if the union sees someone on the city’s list who has a reputation for upholding the termination of officers, they’ll strike that arbitrator from the list, and vice versa. So if you’re an arbitrator, and you want to keep working as an arbitrator, the logical thing to do, consciously or not, is to come out about 50% in favor of each side. And that’s just not a way to set up a system of accountability, where you have people incentivized to always decide half the cases in one direction, half the cases in the other, with little regard to their merits. Unions are a place that we should be looking at very, very carefully when we’re thinking about police accountability. And these union negotiations all happen at the city level, and these negotiations typically go on behind closed doors, and the public usually doesn’t even know when they’re happening. But the city is there bargaining away procedural protections that end up affecting people in the city because they affect the behavior of the police.
Amanda Knox
Looking at other developed countries, are there any models of policing that we should be looking towards when re-envisioning our own police force?
John Rappaport
That’s a good question. I know that the UK has received some positive coverage, at least from American newspapers, about the way they approach policing. Most, or at least some officers in the UK, don’t carry firearms when they police. I’ve seen videos of officers in the UK dealing with someone who’s wielding a knife, and the person probably would have ended up shot, or at the very least tased, in the United States, and wasn’t in the UK. Similarly, you sometimes hear about the police in Japan being good, not carrying firearms, a police officer stationed in different neighborhoods. It’s really the ideal of neighborhood policing. It’s the same officer there every day, and people in that area really know and trust the officer. So, I would wager that the answer is yes, there are probably a lot of places in the world that we could study and we could learn a lot. And then I’ll just add a cautionary note, which is that societies are very different from each other. And even if we could watch policing in Japan or policing in the UK and think those are tactics that we should be using here in the United States, they may not work. We have different socio-economic diversity. We have different racial diversity. We have different geography. And we have a lot more guns. We should not be too quick to assume that we can just import their methods in wholecloth into the United States, because the facts on the ground are just different here.
Amanda Knox
So what have I missed? What are you thinking about right now that I haven’t asked you about?
John Rappaport
The issue of police officer certification. So law enforcement is a licensed profession. Just like driving a taxi, or running a hair salon, or a nail salon, or being a CPA, you have to get a license from the state. And most states have something called a POST board, Peace Officer Standards and Training board, and that’s the institution that’s responsible for licensing officers. The process varies from state to state, but it’s something like an exam and a certain amount of training and sometimes certain fitness requirements. And in many states, though certainly not all, these POST boards also have the authority to decertify officers. Decertification is sort of orthogonal to the type of accountability we were discussing earlier, where the chief is trying to fire an officer, but then the arbitrator is reinstating him in some places. Even if the arbitrator reinstates you, if the state POST board pulls your license, you’re out of luck. You can’t go back to work. And personally, I would like to see these POST boards be more proactive. Because the way things work now, in most states, if you get fired from your job as a police officer and you can’t get reinstated in arbitration, you probably just moved to the next town over to get a job. And I have some research with a co-author named Ben Grunwald, and he and I find that in Florida in any given time, there are about 1000 to 1100 police officers on the streets who have been fired by other agencies. And we show that they do go on to get fired again at a higher rate than other officers. There’s also moral character violations or serious misconduct violations. These wandering officers are a problem. And they are a problem that the POST boards can help with, even in the face of a strong police union. Now, if you want to put more emphasis on certification, then you need to also think carefully about how states are going to pool certification information. So you need something like a national certification index, where Georgia is going to query that database to see whether this officer has been decertified in another state. And if he has, not allow them to become certified in Georgia. Such a database actually does exist, but it’s not complete. Not only are there POST boards that are not active, but there are POST boards that just don’t report their decertifications into this national database. This is a profession, and the state has a role to play in licensing that profession, the way that we license other professions. You know, lawyers are careful partly because they know that they could get in trouble with the Bar Association, and they could potentially lose their law license. So I’m not recommending anything for police officers that I don’t already live with as a lawyer who’s a member of a state bar.
