Harvard Law & Policy Review

HLPR Symposium

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HLPR 2016 Symposium Day 4: Prof. Katherine Beckett: Toward Harm Reduction Policing

Speaker

Katherine Beckett, Clarence and Elissa M. (“Lee”) Schrag Faculty Fellow at the University of Washington

 

By Isaac Saidel-Goley

Summary

Prof. Beckett discussed some of the problematic uses of police discretion, while also arguing that there are ways to channel police discretion to promote social and racial justice. As a case study, Prof. Beckett outlined an innovative diversionary program in Seattle called the Law Enforcement Diversion Program.

Discussion

To begin her talk, Prof. Beckett outlined research on the inevitability and ubiquity of police discretion in modern policing. Prof. Beckett then highlighted two examples of highly problematic applications of police discretion: 1) the war on drugs, and 2) broken windows policing.

The war on drugs was a concerted campaign, led by the federal government, to steer police discretion toward increased arrest levels for illicit drug use. This application of police discretion proved counter-productive in numerous ways; most notably the war on drugs led to dramatically racially disparate arrest levels and contributed to mass incarceration. Broken windows policing was another concerted campaign to steer police discretion, this time to crack down on minor legal infractions of all types. This use of police discretion also proved counter-productive, contributing to mass incarceration and racially disparate arrest levels, with young black men facing highly disproportionate criminal justice outcomes compared to other populations. In sum, Prof. Beckett argued that both the war on drugs and broken windows policing contributed significantly to mass incarceration and racial inequality within the criminal justice system, while largely failing to reduce crime.

With these problematic uses of police discretion in mind, Prof. Beckett introduced the purpose of her research: investigating ways to channel police discretion to promote social and racial justice. The exemplary model of police discretion on which Prof. Beckett’s research focuses is Seattle’s innovative diversionary program called the Law Enforcement Diversion Program (LEAD), which was premised on the idea that police discretion could be diverted from the war on drugs in Seattle toward a more productive and socially beneficial application of police discretion. LEAD is a pre-booking diversion program, where police are encouraged to refer minor offenders (usually drug offenders) to LEAD case managers instead of arresting and booking them. Once the minor offenders are referred to LEAD, the LEAD case managers begin intensive social intervention to help the new clients obtain access to intervention programs. LEAD has led to numerous social benefits including reduced arrest and incarceration rates among clients, reduced client recidivism, significant cost savings for the state, and increased stakeholder (e.g., police) openness to criminal justice reform. LEAD has since been successfully replicated by a number of other localities.

Prof. Beckett ended her talk by recognizing some of the structural challenges Seattle faced in establishing LEAD, as well as some of the ongoing challenges in maintaining LEAD, and argued that those challenges are not insurmountable and ultimately pale in comparison to the systemic and individual benefits of LEAD.

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HLPR 2016 Symposium Day 3: Prof. Franklin Zimring on International Comparisons of Killings of and by Police

Panelists:

Franklin Zimring, William G Simon Professor of Law at U.C. Berkeley

Philip Heymann, James Barr Ames Professor of Law at Harvard Law School

 

By Kate Epstein

“Every year there are dozens of articles in law reviews about capital punishment, and there are none about the use of lethal force,” said Prof. Frank Zimring. The third day of the HLPR Symposium focused on that lethal force, centering on a discussion of police killings in the United States through a comparative international lens. Prof. Zimring described his article, Can Foreign Experience Inform U.S. Policy on Killings of and by Police?, which compares the rate of killings of and by police in the United States to other countries like Germany and the U.K. Prof. Phillip Heymann responded.

The talk began with Prof. Zimring comparing the handfuls of police deaths in England, Wales, and Germany to the approximately 1,000 deaths in the United States. His article contains a statistical analysis of these numbers, controlling for variables including the United States’ higher level of overall violence based on the national homicide rate. His ultimate conclusion is that “the elephant in the living room when you do international comparisons … is that there are 60 million concealable handguns in the United States.” The existence of concealable guns, he argues, accounts for higher rates of casualties in police interactions. In altercations without civilian gun ownership, the risk to police officers is much lower. “Only one thing other than a bomb can kill a police officer, and that is a gun.” In his comparison countries, the level of handgun ownership is much lower, and without guns, interactions turn violent less often, and fatal even more rarely.

Prof. Heymann followed up, asking whether alternative explanations—anger of police or civilians, cultural differences, or civilian actions—could account for the different numbers. Given the scale of difference, Prof. Zimring thinks not.

Prof. Zimring had two concrete suggestions, centering on effective administrative controls within police departments. He suggested that, like the U.K., we should publish statistics from each police department about violent encounters which can be used to hold individual departments accountable. His other major suggestion was police management. Based on analysis of seven years of shootings in Chicago, he noted that fatality rates were much lower when police fired fewer shots in a given encounter. Policies to stop shooting earlier—for example, when a civilian is running away, or already on the ground—could prevent a number of deaths each year. By recognizing the effect of gun ownership on police killings, Prof. Zimring proposed that we can make simple, concrete changes to minimize use of lethal force. The talk was cosponsored by ACS and the DOS Grant Fund.

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HLPR 2016 Symposium Day 2: The Evolution of Policing & Police Militarization: A Conversation with Chief Edward Flynn and Kara Dansky

 

By HLPR Staff

When we talk about “the police,” what do we mean? On February 9, the second day of the 2016 HLPR Symposium, the focus was on the evolution of American policing. Moderated by Christine Cole, Vice President of Community Resources for Justice, the panel featured  Milwaukee Chief of Police Edward Flynn and Kara Dansky, founder of 1,000 Arms and former ACLU Senior Counsel.

“The police” is not one singular entity, according to Milwaukee Chief of Police Edward Flynn. Chief Flynn, the first speaker, talked of the over 10,000 departments operating in the United States today. Chief Flynn emphasized good management and community policing. He noted that the police are an important social institution governed by different administrative, cultural, and historical environments.

We need to “move beyond rhetoric,” according to Chief Flynn, and instead fix policing in the cultural, social, and historical environment in which it exists. For Chief Flynn, “ill-defined problems are the worst type of policy mistake. Ill-defined problems come up with bad public policy options.” As such, Chief Flynn advocated greater context and understanding of the extraordinary array of police cultures and police management strategies. According to Chief Flynn, different threat environments necessitate appropriate tools deployed sensibly with government oversight in support of specific mission.

Kara Dansky—the second featured speaker—was the primary author of a landmark 2014 ACLU report on police militarization. She agreed with the difficulty of standardization across 10,000 departments. Dansky’s remarks focused on what “police militarization” means and what its ramifications are. In her research with the ACLU, Dansky found that police were employing military weapons  and strategies for law enforcement activities. According to Dansky, police departments were able to obtain money and equipment from federal programs with inadequate oversight.

Investigating police incident reports, Dansky and her team identified that:

  • Special Weapons and Tactics (SWAT) teams were often deployed for search warrants and drug investigations, and emergency deployments were relatively rare;
  • people of color were overwhelmingly affected by SWAT force deployment; and
  • military weapons and strategies in law enforcement increased the risk of property damage and harm to individuals.

Based on Danksy’s findings, she recommended that police forces be required to provide specific reasons for specific equipment. Dansky advocated for government oversight that encourages police to demonstrate the safety need; the compelling need for the requested equipment; and a detailed inventory of controlled equipment, such as acoustic weapons for crowd disbursement.  For Dansky, one needs to look no further than Ferguson to see a culture of policing that can make police departments look more like a military than law enforcement.

The panel speakers gave Harvard Law community members much to consider. What equipment is necessary for police officers to do their jobs effectively while maintaining safety for officers and community members? For students taking courses like criminal law and criminal procedure, these speakers’ insights will inform course discussions and can illuminate course concepts. The talk was co-sponsored by Law and Social Change and the HLS ACLU Chapter.

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HLPR 2016 Symposium Day 1: Prof. Elizabeth Joh on Big Data and Policing

 

Panelists:

Elizabeth Joh, UC Davis School of Law Professor

Thomas Abt, Harvard Kennedy School Adjunct Lecturer and Program in Criminal Justice Senior Research Fellow

Vivek Krishnamurthy, Harvard Law School Cyberlaw Clinical Instructor

 

By Ana Choi

On Monday, the Harvard Law and Policy Review kicked off its annual symposium featuring the articles in our forthcoming Volume 10.1, with this year’s theme being “Policing in America 50 Years After Miranda.” The opening panel featured Elizabeth Joh, who spoke about her article The New Surveillance Discretion: Automated Suspicion, Big Data, & Policing, and Thomas Abt and Vivek Krishnamurthy, who provided responses to the article.

Prof. Joh started out by discussing why we should be paying more attention to big data in policing. Big data is drastically changing the nature of police surveillance discretion by increasing surveillance power and lowering costs, and yet the law is not paying much attention to this development. With big data policing on the cusp of wider adoption, there are important questions of accountability and transparency that must be considered. Prof. Joh then went on to highlight three specific examples of big data being used in policing. First, she talked about automatic license plate reader (ALPR) technology and gave the example of the Los Angeles City Council’s recent proposal to scan the license plates of cars driving in neighborhoods with high prostitution activity and mailing “Dear John” letters to the houses of these car owners. Second, she discussed social media analysis and how the police department of Fresno, CA is using software to identify red flags in a person’s online activity and calculate their ‘threat score.’ Third, Prof. Joh turned to social network analysis, with the most prominent example being the Chicago Police Department’s creation of a ‘heat list’; this is a list of people who have been determined to be prone to violence—either as a perpetrator or a victim—based on who their acquaintances are.

After Prof. Joh’s overview of her article, Mr. Abt gave a response. The first point he made was that there is often a disconnect between what people see on the outside and what people see on the inside, in terms of police capabilities. He observed that the added burdens of counterterrorism activity that police have been responsible for since 2001, combined with the fact that the recession took a huge toll on law enforcement budgets, have resulted in the police being asked to do more and more with less and less. In his view, the type of sophisticated and powerful techniques of big data policing discussed by Prof. Joh are largely theoretical or anecdotal at this point. Second, Mr. Abt asserted that even if it were true that the police currently have this kind of capabilities, that would not necessarily be a negative thing. He discussed how the Chicago PD’s ‘heat list’ is used not just to scare people, but rather to provide resources and prevent individuals from falling into trouble. Also, he offered the possibility of big data policing as a remedy to the problems of overpolicing. There is a lot of criticism of policing strategies such as New York’s stop-and-frisk policy because they impose heavy costs on innocent citizens for the sake of ferreting out the few actual criminals; Mr. Abt believes that with the effective use of data, we can solve this problem by enabling police to differentiate between harmless citizens and criminals ex-ante.

Mr. Krishnamurthy also gave a response, during which he analyzed the issue of big data and policing from several different angles. First, he noted that while big data technology often actually reduces police discretion by forcing police officers to justify their decisions on what the data shows, there are other potential risks we need to think about such as bad faith on the part of the programmer who is designing these systems, unintentional disparate impact on certain groups, and errors resulting from low quality data. Second, he discussed the possibility of big data policing leading to system-wide benefits in two ways: by pushing strategic decisions about policing to a higher level on the chain of command and thereby bringing more deliberation and scrutiny to these decisions, and by equalizing treatment of criminals so that people who commit the same types of crimes will be subject to the same types of consequences. Third, Mr. Krishnamurthy asserted that the ends being served by big data tools are something we need to think about and determine, not something that is a given; we tend to assume that big data is something that is solely used to facilitate police effectiveness, but we might also imagine a big data tool that is designed to force police to face their implicit biases. Finally, he highlighted the need to talk about privacy at a high level of law and policy: what are the permissible uses of all this data that is being produced, and what kinds of consequences should attach to impermissible uses?

Prof. Joh concluded the panel discussion by providing brief follow-ups to Mr. Abt and Mr. Krishnamurthy’s responses. With regard to the question posed by Mr. Abt—what is the actual harm caused by big data policing?—she focused on the issues of legitimacy and transparency. Even if surveillance technology is being use for good, productive ends, it’s still a problem if the public is not informed about what kind of information is being collected and how it can be used against them. Prof. Joh also acknowledged that there definitely are benefits to big data policing and that it’s true that big data can reduce police discretion at the ground level, but cautioned that there are still hidden sources of discretion—e.g. input data, how the algorithm is designed, etc.—that we need to think about. Prof. Joh’s final point was: the surveillance question is over in a sense; you cannot problematize it anymore. The real question going forward, then, is who has control over the data, how is it going to be shared, and how is it going to be accessed?