A. Current Legal Remedies Do Not Adequately Deter Disproportionate Force

Police brutality remains a widespread and prevalent problem in the United States, and it does not appear to be in decline. As discussed previously, there are a wide variety of legal and administrative measures that can provide a remedy for disproportionate force and deter police misconduct. These measures suffer from one major fault--they fail to deter police misconduct on a consistent basis. This fault is the result of the absence of consistent review of police misconduct with respect to the use of force.

If deterrence is measured as the extent to which an officer expects to be held accountable for disproportionate force, existing legal remedies are not a deterrent. There are three sources of authority that purport to hold police officers accountable, and all are markedly flawed. First, police departments (or review boards) may impose internal discipline upon an officer. Unfortunately, internal discipline is rare, and even in the unusual event that a review board sustains a finding of misconduct, only a private reprimand will result. Institutional realities, such as the power police unions exert and fellow officers' lack of cooperation with internal disciplinary proceedings, often impede legitimate disciplinary measures.

Second, government prosecutors can conduct department-wide investigations of police practices or bring criminal charges against individual officers. This approach is flawed because department-wide investigations target management and training policies and only indirectly deter individual officers. Even if management adopts new procedures, the institutional pressures mentioned previously may prevent reform of a police culture tolerant of aggressive policing. Commentators have strongly criticized the effectiveness of criminal prosecution because prosecutors rarely file charges against members of law enforcement.

Third, private citizens can hold police accountable by filing lawsuits. The problem with this form of police accountability is that many afflicted persons are unable or unwilling to pursue civil rights actions against police. Many cannot afford lawyers, and others are concerned that filing such lawsuits may lead to retaliation by law-enforcement agencies. These deficiencies are demonstrated by the fact that injured persons file very few lawsuits compared to the overall number of incidents of disproportionate force.

These faults can be collapsed into a single criticism: the lack of accountability apparent in the management of police violence is the result of an inconsistent enforcement mechanism for remedying disproportionate force. As reflected in Supreme Court Fourth Amendment doctrine, procedural rules governing police conduct can deter misconduct because police discretion is limited. One example is the exclusionary rule found in the Court's Fourth Amendment search and seizure doctrine. Broadly stated, if police fail to legally search or seize a person or evidence, the products of that search or seizure are suppressed and cannot be used against the defendant. This suppression normally occurs after a pretrial motion is filed and a hearing is held, during which the officer must testify about his actions. Because this rule requires police to follow exact procedures and has a strong enforcement mechanism, police are likely to follow proper procedures even in extenuating circumstances.

Any effective approach to police accountability should take heed and provide a procedural deterrent that puts officers in court soon after an incident involving disproportionate force. Naturally, police often seek to avoid court appearances, as the experience is often stressful, combative, and uncomfortable. Making officers come to court can therefore have a strong deterrent effect. Coming to court can also serve a useful educational role for police officers:

[The evidence] seems to suggest that testifying in court before a hostile adversary and an impatient and possibly skeptical judge has salutary effects: the officer must carefully consider whether he had a legally acceptable basis for his action; and whether this action might be questioned. The preparation for court appears to reinforce lessons so strongly that months and even years later some officers can remember exactly what happened and why evidence was suppressed.

Requiring police to justify their actions in a public setting also serves an important legitimizing function in a democracy. Requiring officers to come before the court will introduce greater accountability into police encounters with citizens, a characteristic the current deterrence framework strongly lacks. Arguably, police already receive sufficient training and know enough procedures to apply the correct amount of force. However, without an adequate enforcement mechanism that is consistently applied, seemingly random incidents of police brutality will continue to plague affected suspects, their communities, and the reputations of police departments.