Dear PERF members, 

As we all waited anxiously for the verdict in the Derek Chauvin trial, I was fixated on one thing: how our judicial system relies on a jury of peers to determine guilt or innocence.  

I kept thinking back nearly 30 years ago, when prosecutors in Los Angeles put forth what seemed like an open-and-shut case against the four LAPD officers accused of assault and excessive force against Rodney King. As with the Chauvin prosecution, that case rested heavily on seemingly incontrovertible video evidence of the encounter, which had been shot by an amateur photographer, shared with a local television station, and then broadcast around the world.

But when the verdict came, all four officers were acquitted. Six days of rioting followed, resulting in 63 deaths, nearly 2,400 people injured, damage to more than 3,000 businesses, and an estimated $1 billion in losses.

As in Los Angeles 29 years ago, the guilt or innocence of Chauvin – and the possibility of demonstrations and violence that could follow the verdict – was determined by 12 anonymous citizens who would need to reach a unanimous decision. Many police chiefs and sheriffs waited nervously last week, knowing full well that you could have 11 jurors who agreed but one who didn’t, resulting in a mistrial.

And even that result likely would have ignited large-scale protests and civil disorder. There could have been national and even international repercussions if just one juror were to have held out.

Prosecutors know that is a possibility in all criminal cases, but especially when the defendant is a police officer. Over the years, juries have been reluctant to convict cops, particularly when they are accused of murder or other very serious crimes.

Philip Stinson, a professor of criminal justice at Bowling Green State University, maintains a database of local and state law enforcement officers who have been charged with crimes. He found that since 2005, 140 officers who have been arrested for murder or manslaughter from an on-duty incident. 44 have been convicted of any crime – usually a lesser offense – and just 7 have been convicted or murder.

So the perception that citizens are reluctant to find cops guilty of criminal offenses seems to be backed up by the data. I find all of this ironic in a way, given the push by many of today’s police reformers to give citizens a larger role in police discipline involving administrative (non-criminal) violations.

Having citizen jurors determine guilt or innocence in criminal cases is a bedrock of our justice system. But in recent years, we have seen civilians given more responsibility in police oversight and accountability – and not always with the results that reformers were looking for. In Chicago, for example, the civilian review board routinely cuts back or reverses entirely the disciplinary decisions of the police superintendent.

Our friend Sam Walker is an emeritus professor of criminology and criminal justice at the University of Nebraska-Omaha and the nation’s foremost expert on police oversight and civilian review.  I spoke to him last July for one of our PERF Critical Issues reports, and what said was eye-opening.

“A lot of people think that a civilian review board will be tougher on officers when examining a use-of-force case than internal affairs will be, but we’ve learned over the decades that that isn’t the case,” he said. Sam’s research has found that a very low percentage of reviewed complaints – an average of about 10% – are sustained in favor of the complainant.  

“Part of the problem is that [civilian review] board members aren’t as well-versed about the internal workings of police departments. They may not know that an officer may have violated a certain policy or done something else wrong, if it’s not part of the immediate complaint,” he said.

Sam cautions that giving review boards the authority to impose discipline takes power away from the chief to run the department, and he fears that can result in less, not more, accountability.

Still, cities such as New York continue to move in that direction. Legislation introduced in the City Council last month would move final authority over disciplinary decisions from the NYPD Commissioner to the Civilian Complaint Review Board. Right now, the CCRB investigates allegations of misconduct and recommends punishment.

“I think that would be a mistake,” Commissioner Dermot Shea recently told NY1 News. “You have to have somebody that’s accountable. If I don’t do a good job, the mayor will show me the door and show somebody else in.”

Even when police chiefs successfully terminate an officer for misconduct, many end up back on the force through arbitration.

The New York Times recently analyzed 200 arbitration decisions dating back to 2010, and found that arbitrators reinstated officers who had been terminated in approximately half of cases. In a separate analysis, Law Professor Stephen Rushin, of Loyola University-Chicago, examined more than 600 arbitration decisions dating back 15 years. He found similar results: arbitrators lowered discipline or put fired officers back on the job about half the time.

Volusia County Sheriff Mike Chitwood expressed his frustration with the arbitration system earlier in the week when discussing the Chauvin verdict.

“One issue we all face is that you can’t get rid of the ‘bad apples’ until something like George Floyd happens. Something makes the national media, and everyone says, ‘You disciplined him 19 times and didn’t get rid of him.’ They don’t understand the arbitration system and how our hands are tied by arbitrators consistently returning the ‘bad apples’ to the force.”

There’s an irony in all of this: police executives are often far tougher on officers who engage in misconduct than are the civilians who are perceived to be more accountable.

The 12 jurors in Minneapolis followed the evidence and did the right thing in finding Derek Chauvin guilty of murdering George Floyd. But we can’t always rely on similar outcomes from civilian review boards and arbitrators when it comes to holding officers accountable for less serious violations.

Before jumping on the citizen review board bandwagon, people should look carefully at the research of Sam Walker and others and see whether the trend toward civilian oversight has led to more accountability and better policing. I think they will be surprised by the results.

No one is more committed to ridding their departments of bad apples than police chiefs and sheriffs. Dermot Shea and Mike Chitwood speak for a lot of chiefs and sheriffs who want to be held accountable, but need the authority to discipline as they see fit for their agencies and their communities.

Have a great weekend.