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Outside the Box: Police departments – not taxpayers – should pay the bill for misconduct settlements

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The recent $27 million settlement between the city of Minneapolis and the family of George Floyd is the largest pretrial settlement in a civil rights wrongful death case in U.S. history. It’s also a glaring signal that our system to hold police accountable for wrongdoing is woefully broken. 

Civil settlements for police misconduct have become more frequent — and in the many cases where criminal charges fail to materialize, this is the only recourse for victims and families to seek accountability and remediation for the harm they have suffered. What is lesser known is that these payouts don’t actually achieve accountability, nor do they serve as a deterrent for police misconduct because the funds almost never come from police budgets.

Instead, these payouts are often covered by insurance policies or settlement budgets where taxpayers — as opposed to the wrongdoers or the institutions that fail to correct practices that perpetuate misconduct — are left footing the bill. And this structure offers little risk-management incentive to address the underlying problems. 

If we are serious about reducing police violence and promoting police accountability, we need to place responsibility for systemic failures at the foot of those who can correct them by holding police departments financially liable for problems that lead to wrongdoing. More importantly, we must proactively transform policing to prevent deadly incidents from occurring in the first instance and stop forcing taxpayers to subsidize misconduct while police departments and unions face no financial accountability and often actively obstruct reforms that could prevent the very situations that lead to these costly settlements. 

More than $3 billion paid to settle misconduct lawsuits

Over the past 10 years, 31 of the 50 U.S. cities with the highest police-to-civilian ratios in the country have spent more than $3 billion to settle misconduct lawsuits. That’s not even the most shocking statistic: three of those cities — New York, Los Angeles and Chicago — have shelled out $2.5 billion in settlements. As cities become more strapped financially, public resources should be invested in healthcare, housing and education — not paying for the misconduct of law enforcement. In Minneapolis, for example, it’s unclear where the $27 million will come from or what services might be cut to pay for it, as the city’s fund covering these payouts is already depleted.

Police budgets have remained at the same percentage of state and local budgets for the past 40 years, despite violent crime falling 74% since the early 1990s. Police departments — not cash-strapped local governments — should fund these settlements, or at the very least departments should have to purchase liability insurance policies where implementation of proactive practices to avoid liability would be factored into pricing. 

There also need to be mechanisms to impose accountability on police unions that frequently oppose common sense reforms aimed at enhancing police practices and addressing misconduct. Too often officers with a history of wrongdoing are put back on the job due to union advocacy or negotiated contract provisions. Civil service and union protections that enable officers who engage in misconduct to continue to police our streets are in need of reform, just as a national database is needed to ensure law enforcement members who have been discharged from one department for misconduct cannot be hired elsewhere without disclosing their history.

Yet these are the exact reforms that unions have blocked time and again. When the lack of these protections result in a tragedy that forms the basis for a large settlement, the unions don’t feel the financial pain; instead taxpayer coffers are depleted.

While civil settlements provide some relief for families, individual officers often avoid any culpability. We need legislative solutions that enhance the ability to hold individual officers accountable, regardless of the uniform they wear. 

Even as one considers efforts to recalibrate accountability, we also must shrink the footprint of policing to avoid situations that can escalate into tragedy. More than 80% of all arrests nationwide are for low-level, nonviolent offenses. George Floyd was apprehended for allegedly using a counterfeit $20 bill, a misdemeanor that was met with a death sentence. It is time to reevaluate whether police resources are best invested in these victimless crimes when more than half of reported crimes — including almost 40% of homicides — go unsolved.

Similarly, mental health, substance use, and other medical emergencies should not be responded to by guns drawn. It is not enough to train officers on de-escalation; we need alternative responder models that remove the criminal justice system from the equation altogether and recognize these human challenges as public health issues best addressed by treatment and support systems, not police. 

It’s also time for these civil settlements and the underlying data on misconduct to come out of the shadows so the general public can understand the extent to which their tax dollars are paying for the consequences of police brutality. There are 18,000 police departments across the country and each is collecting information on misconduct differently — if at all — so any available data is incomplete and inconsistent. As such, it’s nearly impossible to discern whether settlements are having any impact on the prevalence of misconduct. We need national standards for data collection and disclosure so that communities are aware of these settlements —- including how they are paid — and can hold their local officials accountable. 

Among the leaders who can promote accountability are elected prosecutors. Prosecutors should have the ability to independently investigate and prosecute officer-involved shooting incidents and fatalities, while also implementing practices to identify troublesome police conduct and proactively avoid reliance on officers with credibility concerns. Too many people remain behind bars because this misconduct has gone unchecked for too long; prosecutors should also have conviction integrity processes that correct these past injustices.

The widespread failure to address police misconduct has rightfully fractured trust between law enforcement and the communities they are meant to serve, particularly communities of color. Civil settlements should not be the only recourse for victims of police wrongdoing. But when they are, we should ensure that those responsible for the systemic failures — or for standing in the way of reform — pay the price for the resulting tragedies. And we must implement structural reforms that address the root causes of police misconduct so that we create a justice system that lives up to its name. 

Miriam Aroni Krinsky is executive director of Fair and Just Prosecution and a former federal prosecutor.

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