Three Universities Launch National Database to Track School Shootings

The first of its kind open-source database will collect information on all incidents involving a firearm affecting K-12 students. In a project funded by NIJ, John Jay College, University of Texas at Dallas and Michigan State have partnered to collect and track school shootings in order to come up with prevention strategies.

Three universities have created a national, open-source data base to track school shootings and develop strategies for countering them.

The partnership between John Jay College, the University of Texas at Dallas and Michigan State University, will track fatal shooting attacks that targeted K-12 students or teachers, but also include cases that resulted in injuries but no deaths; domestic violence; workplace violence; as well as suicides on school grounds involving a firearm.

Joshua Freilich

Prof. Joshua Freilich

“The dearth of empirical data on school violence in the United States and the almost complete absence of quantitative data on perpetrators and incidents will be remedied by the production of this database and the analysis of data on the risk factors of school shootings,” said Professor Joshua Freilich, the principal investigator of the project and a member of the Department of Criminal Justice at John Jay College, said Tuesday.

The first-of-its-kind project is supported by a grant from the National Institute of Justice’s (NIJ) Comprehensive School Safety Initiative, which aims to provide a knowledge base about the root causes of school violence, as well as assess strategies for increasing school safety.

“At this crucial time in our national discussion on school violence, John Jay College is proud to be at the forefront of academic research that will support local, state and national efforts to tackle this problem with evidence-based policies and interventions,” said Karol V. Mason, President of John Jay College of Criminal Justice.“

The database will include data about all publicly known school shootings that resulted in at least one injury from 1990 to December 31st, 2016.

The database will be made public in the spring of 2019.

The major objectives of the project include:

  • documenting the nature of the problem and clarifying the types of shooting incidents occurring in schools;
  • providing a “comprehensive understanding of the perpetrators of school shootings and test causal factors to assess if mass and non-mass shootings are comparable”; and
  • comparing incidents that involved fatal and nonfatal shooting, with a view to “identify intervention points that could be used to reduce the harm caused by shootings.”

See also: Trump Seeks Shutdown of School Safety Studies.

A release explaining the project can be downloaded here.


Trump ‘Not Considering Firing’ Mueller, But Tweets Continue

White House attorney Ty Cobb said the president wasn’t contemplating firing the chief of the Russian probe, but Trump lashed out on social media again Monday, calling it a ‘witch hunt.’

President Trump is not considering firing special counsel Robert Mueller, White House attorney Ty Cobb said Sunday evening—even after the president directly lashed out at Mueller’s probe during the weekend, reports CNBC news.

The lawyer’s assurance wasn’t likely to assuage concerns that the president would act against the special counsel, however. On Monday, Trump continued his social-media onslaught against the Mueller probe by again calling it a “witch hunt.”

Over the weekend, Attorney General Jeff Sessions fired former FBI deputy director Andrew Mc­Cabe, a little more than 24 hours before McCabe was set to retire.

McCabe alleged that the action was an attempt to slander him and undermine the ongoing special counsel investigation into the Trump campaign. 

McCabe said he was being targeted because he was a witness in special counsel Robert Mueller’s probe into whether the Trump campaign coordinated with Russia and asserting that his actions were appropriate. 

“This attack on my credibility is one part of a larger effort not just to slander me personally, but to taint the FBI, law enforcement, and intelligence professionals more generally,” he continued, adding that the campaign “highlights the importance of the Special Counsel’s work.” 

Sessions said that both the Justice Department inspector general and the FBI office that handles discipline had found “that Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor — including under oath — on multiple occasions.”

President Trump tweeted that McCabe “knew all about the lies and corruption going on at the highest levels of the FBI!” Michael Bromwich, Mc­Cabe’s attorney, said he had “never before seen the type of rush to judgment — and rush to summary punishment.”

Simultaneously on Saturday afternoon, John Dowd, President Trump’s lawyer, asked the Justice Department to shut down the special counsel probe into Russian interference in the 2016 election immediately, the Washington Post reports. Dowd said the investigation led by Robert Mueller was fatally flawed early on and “corrupted” by political bias.

He called on Deputy Attorney General Rod Rosenstein to end it, who oversees that probe, to shut it down. Dowd first told the Daily Beast he was speaking on Trump’s behalf but then told the Post he was not.

On a twitter rampage, Trump criticized “leaking, lying and corruption” in federal law enforcement agencies, but he stopped short of echoing Dowd’s call for an end to the Mueller probe.

If Dowd’s statement reflected Trump’s legal strategy, it would represent a significant shift in the president’s approach to the Mueller investigation.

Trump’s lawyers and spokesmen have pledged that he and his staff would cooperate fully with Mueller’s probe. The White House has responded to requests for documents, while senior officials have sat for hours of interviews with the special counsel’s investigators. 

This summary was prepared by TCR staffer Megan Hadley.


‘Don’t Elect Me:’ Why States Should Abolish County Sheriffs’ Offices

The office of sheriff is “anachronistic,” unaccountable to the public, and should be replaced with a more professional county police department, says a new study published in the Virginia Law Review.

The office of sheriff is “anachronistic,” unaccountable to the public, and should be replaced with a more professional county police department, says a new study.

“There still must be a county law enforcement agency to serve unincorporated municipalities where they exist,” argues the study, published in the March 2018 edition of the Virginia Law Review.

“However, the twentieth century was a story of policing becoming more professionalized, and counties have increasingly found that a professional, dedicated county police department is a better organization to handle law enforcement than a jack-of-all-trades sheriff.”

The study, written by James Tomberlin of the University of Virginia School of Law, said local sheriff’s elections provide minimal accountability since so many incumbents run unopposed.

Quoting former Los Angeles County Sheriff Lee Baca’s response to a question from a citizens’ commission about how he could be held accountable for misconduct— “Don’t elect me”—the author noted that since at least 1932, no incumbent has ever been unseated in Los Angeles County, which hosts the largest sheriff’s department in the United States.

The office of sheriff dates back to the 9th century in England. Even as the power of the office declined after the 13th century, it was given new life in colonial America—and eventually became part of the myth of the West, where upright sheriffs helped tame a lawless frontier.

Today, there are a little over 3,000 sheriffs around the U.S., and their departments employ 352,000 personnel.

While elections nominally make sheriffs accountable to the public for their actions, in practice, voter turnout in local sheriffs’ elections is low, the study said, noting that in rural counties, most qualified replacements for the sheriff would be one of the sheriff’s immediate subordinates, making him or her less likely to want to run against their boss.

Adding to the challenge of public accountability, policing often involves “one-off” discretionary decision-making, which is harder to observe and review than public policy decisions made by politicians.

Municipalities or county governments are currently helpless to affect the conduct of their sheriff’s offices, wrote the author.

Joe Arpaio

Former Sheriff Joe Arpaio. Caricature by DonkeyHotel via flickr

The study cited the conflict in 2008 between the small Arizona town of Guadalupe and former Maricopa County Sheriff Joe Arpaio who became notorious for his sweeps of local residents suspected of being undocumented immigrants.

Arpaio responded to the mayor’s complaints by saying, “If you don’t like the way we operate, you get your own police department.” But when the mayor said she would consider doing that, Arpaio “raised the stakes two weeks later, stating that he intended to cancel the town’s contract. “

The author contrasted that with Connecticut’s decision to abolish the officer of sheriff following a political battle. He quoted a comment by then-State Rep. Michael P.Lawlor, who said it’s “not a good idea to run a professional agency on a political basis. “

The study advocates merging county and city policing agencies into one department.

The full study can be downloaded here.

This study was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.


Can Better Health Care Help Ex-Inmates Avoid Returning to Jail?

Giving former inmates better health care through Medcaid and other coverage can “enhance public safety, reduce recidivism, and more efficiently use public resources,” says a new guide from the Urban Institute and the law and consulting firm Manatt, Phelps & Phillips.

Returning inmates need cooordinated and effective health care coverage to escape the “revolving door” that cycles many of them back to jail or prison, according to a policy guide released Friday by the Urban Institute.

The guide, prepared by the Urban Institute and the law and consulting firm Manatt, Phelps & Phillips, is aimed at helping justice-involved individuals enroll efficiently in Medicaid and other health coverage to obtain “coordinated physical and behavioral health care.”

Currently, the “revolving door” between incarceration and the community leaves many people alternating between correctional and community-based providers, the guide said.

Better-coordinated health coverage will “enhance public safety, reduce recidivism, and more efficiently use public resources,” wrote the authors of the guide.

If states can improve health care for released inmates, they “will be in a stronger position to address (the) substance abuse issues, chronic physical and mental illness, unemployment and employment instability, and homelessness that result in many justice-involved people cycling in and out of jail or the hospital,” the authors wrote.

Maintaining health coverage is a common problem for released prisoners.

Prison inmates have four times the rate of active tuberculosis found in the general population, nine to ten times the rate of Hepatitis C, eight to nine times the rate of human immunodeficiency virus (HIV) infection, three times times the rate of serious mental illness, and four times the rate of substance abuse disorders, the guide said.

Jail populations have similar high levels. Many inmates fail to get needed care, and when they are released, they often face disruptions in medical care that contribute to recidivism, drug use, and poor and costly health outcomes. One study found a 12-fold increase in the risk of death in the two weeks after release.

Another study of people returning from prison in Ohio and Texas found that, within 10 months of release, a fifth had been hospitalized, and a third had sought care in emergency rooms.

The project, supported by the U.S. Justice Department, is called the “Connecting Criminal Justice to Health Care Initiative” (CCJH), and was developed by corrections and health care officials in Maryland and Los Angeles County, Ca.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments are welcome.


Police Misconduct Records Denied, Public Remains in Dark: Study

Despite state public access laws, Colorado law enforcement agencies routinely refuse to release internal files related to police misconduct, according to Denver researchers.

Despite state public access laws, Colorado law enforcement agencies routinely refuse to release internal files related to police misconduct, according to a new report.

Independent researchers Bridget DuPey, Margaret B. Kwoka and Christopher McMichael from the University of Denver Sturm College of Law tried to collect internal affair files during 2015 and 2016 from law enforcement agencies across Colorado—but to little avail.

More than half of the 43 agencies they reached out to either did not respond or rejected their request.

Twenty-four of the agencies provided no responsive records. Only five of the law enforcement agencies queried supplied files that were deemed to be “substantially transparent.”

Under The Colorado Criminal Justice Records Act (CCJRA), discretionary release of investigation files against police officers is permitted.

The intent of Colorado’s open-record laws is to promote the public’s interest in holding government accountable by requiring transparency, the study said.

One court noted that “transparency enhances public confidence in the police department and is constituent with community policing concepts and represents the more modern and enlightened view of the relationship between police departments and the communities they serve.”

But the study found this is hardly the case, and custodians generally deny all requests for files, regardless of the situation or outcomes.

The authors followed up with a second wave of requests to agencies that responded the first time, asking for more specific internal affairs documents.

Forty percent of agencies did not respond at all. Seven percent offered a duplicate of their first response, and thirteen percent asked for a prohibitive access fee.

Moreover, even when the alleged misconduct had been widely publicized, public outrage over the incident was high, and law enforcement agreed to a substantial payout of the alleged victim, public access of the files were still denied.

For example, in July 2017, the City of Aurora paid Darsean Kelley $110,000 to settle claims against an Aurora police officer who tased him in the back. A video of the incident had been viewed thousands of times, and Mr. Kelley’s case had generated nationwide media coverage, the study showed. 

Still the authors’ open records request to the City of Aurora was denied.

However, law enforcement agencies have admitted that when compelled by the courts to release internal affairs files, no harm has been done to the integrity of any investigations.

To fulfill the promise of Colorado’s open record laws, the state legislature should pass laws requiring police agencies to disclose completed internal affairs files in response to requests, said researchers.

“Without such legislation, the public will remain in the dark even with it comes to police misconduct.”

The full study can be downloaded here.

This summary was prepared by TCR news intern John Ramsey. Readers’ comments are welcome.


Congress Turns to School Safety After National School Walkout

“This is only the beginning,” one student declared during a national day of protest over gun violence in schools Wednesday, as the House prepared to consider a bill to fund training for students, school personnel and law enforcement to detect early signs of violence. Research shows 1,300 children die and nearly 5,800 are treated for gunshot wounds each year.

As students from more than 2,800 schools staged a National School Walkout Wednesday, urging lawmakers to do more about gun violence, the House prepared to take up a bill that would fund training for students, school personnel and law enforcement to detect early signs of violence.

It would also fund threat assessments and “anonymous reporting systems” such as phone apps, hotlines and websites for threats of school violence.

“This is only the beginning,” a Twitter account documenting the walkout proclaimed.

Thousands of students, emboldened by a growing protest movement over gun violence, stood up in their classrooms and walked out of their schools after a gunman killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., The New York Times reports.

The 17-minute protests unfolding at hundreds of schools are intended to pressure Congress to approve gun control legislation and come 10 days before major protests in Washington and elsewhere.

“We want to make sure that we’re focusing on the issue of guns and gun reform,” said Madison Thomas, 20, a Georgetown University student helping manage the walkout. 

Some of the day’s most poignant demonstrations are happening at schools whose names are now synonymous with shootings.

In Colorado, students at Columbine High School will leave their classrooms and begin 30 seconds of silence: 17 for the dead in Parkland and 13 for the dead on their own campus in the shooting that seemed to signify the beginning of a generation of school attacks.

In Newtown, Conn., where 26 people were killed at Sandy Hook Elementary School in 2012, hundreds of students filed out of Newtown High School just moments before 10 a.m. and gathered in a parking lot near the football field. Some held posters. Organizers said they planned to recite the names of victims of gun violence.

Gun-control advocates hope for more from Congress than additional school security. They are calling for an expansion of background checks, a ban on “assault weapons” and high-capacity magazines, and other measures.

Senate Majority Leader Mitch McConnell (R-KY) said he is “anxious” to pass significant school safety legislation and the “Fix NICS” bill to improve reporting to the National Instant Criminal Background Check System. It’s unclear whether senators will act before they start a two-week recess on March 26.  

Gun-control advocates hope for more from Congress than additional school security. They are calling for an expansion of background checks, a ban on “assault weapons” and high-capacity magazines, and other measures.

The Senate Judiciary Committee will analyze the government’s response to the Valentine’s Day shooting in Parkland, Fl., and discuss legislative proposals to improve school safety. Witnesses will include members of law enforcement agencies, a Parkland teacher and the father of a shooting victim.

The nationwide protests come at a time when young people in the U.S. are at disturbing risk of getting shot by other children, by their parents, by themselves, or by strangers, reports The Trace.

Government data and academic research on gun violence shows that no space is safe: children are struck by bullets at home, at the park, at school.

This year, at least 50 people have been shot or killed on a school or college campus, and the U.S. averaged one school shooting every week.

Drill down into the statistics on gun violence, and the damage becomes even more stark: Nineteen children a day are killed or hurt by guns that were too easy to access; more than 150,000 students study in schools where shots have rung out since Columbine; hundreds of millions of dollars have been spent on medical treatment to save young lives.

The toll is a product of the nation’s prevalence of firearms (roughly 265 million guns in circulation) and pro-gun policies and gun-industry marketing that can lead to unsafe behaviors among adults who possess firearms while raising children.

On average, 1,300 children die and nearly 5,800 are treated for gunshot wounds each year, according to a 2017 study from the Centers for Disease Control and Prevention.

The vast majority of gun-violence victims are boys, who comprise 82 percent of those killed by bullets. Homicide rates are disproportionately high among African Americans; suicide rates are disproportionately high among whites and American Indians.

This summary was prepared from combined news reports by TCR staffer Megan Hadley.


Too Poor to Raise Bail, 100,000 New Yorkers Sent Behind Bars

According to a report from the New York Civil Liberties Union, white defendants were more than two times more likely to be released on the same day bail was set than black defendants.

A report by the New York Civil Liberties Union (NYCLU) found that in eight of New York’s 62 counties, some 100,000 people spent time in jail between 2010 and 2014 because they couldn’t afford cash bail; and of these pretrial detainees, over 60 percent were eventually charged with misdemeanors or violations.

The report, entitled Presumed Innocent for a Price, sheds some light on who’s been doing time in New York’s county jails because they can’t pay cash bail.

Until now,”the scope of the state bail problem outside of New York City has not been well understood,” said the report, released Tuesday.

The report was released ahead of Wednesday’s “day of action” in the state capital, where several organizations are gathering “to advocate for comprehensive criminal justice reforms, including fixes to New York’s bail, speedy trial and evidence-sharing practices,” writes the NYCLU.

Using records obtained through public record requests, the NYCLU analyzed bail data from eight small, medium and large counties in the state.

More than 5,800 New Yorkers were held on bail for violations only, most commonly for harassment, disorderly conduct, or trespassing. 41 percent of detainees charged with one of these violations were held on bail that exceeded the maximum fine they could be required to pay if found guilty.

According to the report, white defendants were more than two times more likely to be released on the same day bail was set than black defendants.

“While black and white New Yorkers each accounted for 45 percent of pretrial detainees who spent any time in custody after bail was set in their case, 48 percent of those who spent at least one night in custody were black compared to 41 percent white, and 50 percent of those who spent at least one week in custody were black compared to 38 percent white,” the study said.

NYCLU data was collected from Albany, Dutchess, Monroe, Niagara, Orange, Schenectady, Ulster, and Westchester counties.

This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.


An ‘Independent’ FBI  Would Threaten US Civil Liberties: Paper

Calls for greater independence of the FBI in the wake of concerns about the Trump investigation are misguided, says a University of Louisville law professor. He argues those who worry about presidential interference should support creating a separate federal crime agency while keeping its counterintelligence functions answerable to the president.

The best way to ensure the independence of the Federal Bureau of Investigation (FBI) from the president while maintaining civilian control is to split the agency into separate organizations for criminal investigation and national security, argues a  paper published in the George Washington Law Review.

Calls for the “independence” of the FBI, particularly in the wake of controversy connected with President Donald Trump’s efforts to halt the investigation into his campaign’s connection with Russia, are “misguided and dangerous,” wrote Justin Walker of the Louis D. Brandeis School of Law at the University of Louisville.

Although Walker writes he is not advocating splitting the agency, he says that those worried about  presidential interference in the FBI’s criminal investigation should consider such a move instead of trying to make the “entire agency independent,” which he warns would violate the principle of civilian control of the military.

Giving such blanket independence to the FBI would threaten civil liberties and undermine the warnings expressed by the Founding Fathers about a military outside of civilian control.

“Just as distinct political, religious, and ethnic groups were often targeted by the armies whose abuses in Britain and the colonies caused the founders’ skepticism of standing armies, so too for individuals and groups targeted by the FBI,” wrote Walker.

The article details the history of civil liberty infringements associated with the FBI’s national security efforts, through the early 20th century to the post 9/11 world, listing abuses such as “illegal and warrantless wiretaps, buggings, burglaries, destruction of files, and harassment of political minorities, the gay community, and African-Americans.”

While the author also extols the FBI’s achievements, he notes that keeping the agency accountable to the president and congress is essential.

“The FBI director should not think of himself as the Nation’s Protector,” Walker wrote. “Instead he must think of himself as an agent of the president. Of course like any military officer, he should give candid advice and like any military officer, he should not obey illegal orders.

“But he must not make the mistake of (former) Director J. Edgar Hoover and view himself as an independent force who can decide for himself what practices to pursue, what politics to embrace, and what commands from the president or attorney general to obey.”

Walker warned, “When the FBI is independent of the president, it is independent of us—and of anyone.”

The article says splitting the agency into two separate units –one for criminal investigations and one for security—“would be consistent with the principle of civilian control of the military,” and follow a model used by other countries such as the United Kingdom, where MI 5 is in charge of counterterrorism, counterintelligence and domestic intelligence; and New Scotland Yard is responsible for criminal investigation.

Walker said the 9/121 Commission came close to recommending such a reform.

But the effort failed after “extensive lobbying” by then-FBI Director Robert Mueller, who currently heads the probe into the Trump campaign.

The full paper can be downloaded here.

TCR news intern John Ramsey contribute to this summary. Readers’ comments are welcome.


Could Sentencing ‘Discounts’ Replace Plea Bargaining?

A forthcoming study argues that putting sentencing authority in the hands of impartial judges will curb prosecutors’ “unfettered” power to force poor defendants to plead guilty or face trial. The study authors propose a more transparent system, similar to Australia’s, which automatically reduces a sentence by fixed percentages if the accused elects to go to trial.

A fairer trial system requires both transparency and a shift of power away from prosecutors “into the hands of (impartial) sentencing judges,” argue the authors of a forthcoming article in Missouri Law Review.

It isn’t an exaggeration to say the right to a fair trial in the U.S. is close to a myth, when the fate of more than 90 percent of criminal cases is determined by unrecorded conversations that take place in a courthouse hallway, according to the article, entitled  Plea Bargaining: From Patent Unfairness to Transparent Justice.

The authors propose replacing the current U.S. system with a model similar to one used in Australia, where judges have a high degree of authority over sentencing, and where the high court has ruled that prosecutors cannot even make a submission regarding an appropriate sentence.

The plea bargaining in U.S. courtrooms between prosecutors and defense attorneys, which Justice Anthony Kennedy called “horse trading,”  isn’t really a “negotiation” at all  due to the imbalance of power on the side of prosecutors, wrote the authors–making a defendant’s decision to plead guilty a rational choice, said the authors.

“The realities of the prison and the bail system, and the nearly unfettered power reposed in prosecutors often applies considerable persuasive force to those defendants who do not have the resources to get out of jail on bail or take their cases to trial,” the article said.

In US courts, the judge is absent from the plea negotiations.  Unlike trials, there are no records of the bargaining process, which happens outside the courtroom—in brief conversations between court appearances, sometimes by email, and sometimes over the phone.

Though judges can later reject a defendant’s guilty plea, “in reality, nearly all plea agreements are accepted by the courts,” wrote the authors– because the courts know very little about the case, and are under “considerable time pressures.”

The paper was written by Mirko Bagaric, Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School; Julie N. Clark, of Melbourne Law School; and William Rininger, of the  University of Akron School of Law.

They propose establishing a sentencing discount of up to 30 percent to all offenders who plead guilty. Where the prosecution’s case is weak, and a defendant is “tenably innocent,” they should receive a discount of up 75 percent. This will reduce both incarceration levels and discrimination in sentencing, they argue.

The paper acknowledges the constitutional limitations of this scheme, namely  the potential interference with a defendant’s right not to plead guilty, and right to a fair trial.

“Paradoxically, the effect of our proposal is that defendants with the strongest defense will be most strongly encouraged to plead guilty,” the authors wrote.

But it’s clear that the current plea process results in many innocent people pleading guilty, the authors argue, and “while our proposal will have the same effect, it has a demonstrable advantage over the current system.”

They added: “The transparency of the reform means that defendants will know precisely the maximum discount that is available to them if they relinquish their right to trial. This means that they can make fully-informed, autonomous decisions regarding their criminal justice outcomes and have a basis for confidence that their prospect of acquittal, if they had elected to exercise their right to trial, will be reflected in a significantly lower sentence.

“This is in contrast to the current situation, where the discount accorded to defendants in the plea bargaining process is, to some extent, driven by the opaqueness and fickleness of the respective negotiation skills of the prosecutor and defense lawyers.”

This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.


Does Police Immunity for Wrongful Arrests Really Deter Crime?

In the wake of the ongoing debate over police misconduct, a new economic study considers the cost of granting full immunity to officers for wrongful arrests and detention of innocent people. While in the short run such immunity might deter crime, it is likely to reduce police competence at identifying real criminals, the authors said.

In the wake of ongoing attention to police misconduct, a new economic study considers the cost of granting full immunity to officers for wrongful arrests and detention of innocent people, instead proposing a model of “qualified immunity.”

According to the paper forthcoming in Economic Inquiry, many police jurisdictions grant officers immunity from penalties for these errors under the belief that harsh discipline would cause them to become “timid” during encounters with suspects, and potentially weaken law enforcement efforts. However, economists have long argued that wrongful arrests also lower the “opportunity cost” of committing a crime.

In order to understand the trade-off between punishing police for wrongful arrests on the one hand, and incentivizing the kind of “proactive enforcement efforts” that sometimes lead to errors on the other, economists Ajit Mishra, Senior Lecturer in the Department of Economics at the University of Bath (UK), and Andrew Samuel, Associate Professor in the Department of Economics at Loyola University, studied three different types of “penalty regimes” in the U.S.

The first category consists of those jurisdictions that grant full immunity from penalties; the second, harsh penalties for wrongful arrests and detentions; and the third, “qualified immunity,” where officers are punished only if they acted incompetently (rather than committing an “honest mistake”).

Honest Mistake, or Incompetence?

For the sake of this study, authors assumed that wrongful arrests are not “honest mistakes” and are therefore caused by incompetence, as opposed to indifference, lack of will, or malice.

The study found a negative “competence effect” on jurisdictions that do not enforce penalties for wrongful arrests, concluding that “full immunity gives officers weak
incentives to invest in costly measures that make them more capable of distinguishing criminals from innocents.”

Instead of decreasing crime, write the authors, immunity may increase illegal activity by providing no reason for police officers to increase their competence.

While admitting there was no “econometric” evidence for the effects of granting immunity,  they cited David Simon, the former Baltimore Sun crime reporter,  as providing anecdotal support for the notion that, while not punishing officers for false arrest might deter some crime, full immunity lowers police competence to identify criminals over time.

In on online article titled “The Audacity of Despair,” Simon described a campaign by Baltimore police to restore order by placing many innocent individuals in jail. In order to protect themselves from lawsuits, Simon wrote, “the [police] actually had police supervisors stationed with printed forms at the city jail that said…you can go home now if you sign away any liability the city has for wrongful arrest, or
you can not sign the form and spend the weekend in jail until you see a court commissioner…thousands of people signed that form.”

The study also found a relationship between immunity and decreasing police competence when faced with more complex cases. This finding is particularly critical when considering the broad immunity granted to officials conducting anti-terrorism investigations.

Qualified immunity, however, appears to mitigate both the “timidity” and “competence” effects on law enforcement.

The authors wrote: “When the judicial authorities can observe the officer’s competence decision, then qualified immunity does raise compliance, reduce harassment and wrongful arrests, and improve the competence of officers”– but only if these authorities have complete information regarding an officer’s competency choice.

“We believe that this result is especially important in light of U.S. Court rulings that
have concluded that as long as the officers are acting “competently” they are “immune from being sued for apprehending an innocent individual,” the paper said.

Ajit Mishra is a senior lecturer in Economics at the University of Bath. Andrew Samuel is an associate professor of Economics at Loyola University Maryland. The full report, “Law enforcement and wrongful arrests with endogenously (in)competent officers,” is forthcoming in the April issue of Economic Inquiry. Readers can request an online early publication version from the authors here.  This summary was prepared by TCR Deputy Editor Victoria Mckenzie.