Stopping bad cops requires transparency and accountability

President Biden signed the Federal Prison Oversight Act into law this month, which will provide much needed transparency and accountability over federal detention facilities and their private contractors.

But the recent police killing of Sonya Massey — a Black mother who called the police for help — is a sad reminder that more reforms are needed at the federal and state levels. This is not just an issue of racial justice and fairness, but also critical for government ethics and transparency.

Police departments across the country have repeatedly failed to hold themselves accountable, fueling racial inequities and perpetuating injustices. The killing of Massey and the release of bodycam footage documenting the fatal shooting went viral, prompting nationwide demands for the police deputy’s suspension and institutional reforms. It emerged that in 2016, the former deputy was discharged from the Army for serious misconduct, yet managed to be hired by six different Illinois law enforcement agencies over a four-year span.

As this familiar scenario plays out once again, we are reminded that real accountability for those who inflict harm on the people they are sworn to protect remains a formidable challenge requiring a comprehensive strategy.

A 2021 NPR investigation showed that, since 2015, at least 135 unarmed Black individuals had been fatally shot by police, often by white officers with troubling histories. Officers with criminal records or numerous complaints frequently remain on the job, as exemplified by the tragic example of Ronell Foster, a Black man and father, who was fatally shot in 2018 by a California police officer. Despite Foster being unarmed and posing no immediate threat, the shooting was deemed justified and no charges were brought against the officer, who remained on the force. Just a year later, the same officer participated in the shooting of another individual on the job.

The rampant use of unlawful force by police officers highlights a critical need for improved transparency and accountability in law enforcement. State laws often actually worsen the challenge by restricting access to police misconduct records. This lack of transparency protects problematic officers from scrutiny and prevents accountability.

For example, police departments in New York continue to fight against the release of unsubstantiated or unproven police misconduct records, despite the 2020 repeal of a state law that previously only allowed for the release of those allegations that had been substantiated or otherwise led to an officer’s discipline.

In 2021, the Illinois legislature passed a bill purportedly aimed at requiring more expansive reporting of officer misconduct to the state’s Law Enforcement and Training Standards Board. However, a last-minute amendment to the bill actually sealed the database, restricting public and court access to statewide police misconduct records and forcing requesters to file state Freedom of Information Act requests with each of the nearly 900 Illinois law enforcement agencies. An additional barrier to transparency and accountability is the fact that police misconduct records are sealed after four years under Illinois law, rendering public access nearly impossible.

Unfortunately, the obstacles to transparency and accountability in policing do not end there. Politically powerful police unions — which have historically used collective bargaining and political donations to influence policies and procedures that shield officers from being held to account — have consistently resisted calls for reform. As a result of this outsized political influence, too many officers who commit violations, even serious ones, are able to keep their badges.

However, there is a path forward to help mitigate these systemic failures. The Special Inspector General for Law Enforcement Act is a strong starting point. This federal law would create a special inspector general to investigate misconduct at every level of law enforcement and protect whistleblowers from retaliation, aiming to shatter the code of silence and address conflicts in internal investigations. The Ending Qualified Immunity Act, another systemic reform, would allow civil lawsuits against public officials personally to deter instances of misconduct, thus ensuring real accountability.

But accountability must go hand in hand with transparency to be truly effective, and we need legislative vehicles that ensure this. For example, the state of Maryland passed model legislation that promotes adequate transparency measures by granting public access to police misconduct records for free or minimal cost. The George Floyd Justice in Policing Act would tackle abuses head-on by creating a public National Police Misconduct Registry, establishing a centralized database on police complaints and wrongdoing, making it easier to track behavior patterns and hold officers accountable.

It is not uncommon for an officer who resigns or is terminated for misconduct from one agency to then be hired by another, becoming a “wandering cop.” For example, an officer in Ohio left his job after the police department concluded that he possessed a “dangerous lack of composure.” He was later hired by another law enforcement agency, and in 2014 killed Tamir Rice, a 12-year old Black child. All law enforcement agencies should be required to use the National Law Enforcement Accountability Database, which is designed to improve hiring, promotion and retention by tracking criminal convictions, suspensions, terminations, civil judgments and other complaints of serious misconduct.

While horrific cases of police misconduct have grabbed nationwide attention, they are just the tip of the iceberg. Many of the officers who have wrongfully killed people already had other misconduct violations. While it is laudable that the Federal Prison Oversight Act provides new tools for accountability in the criminal justice system, more reform is needed.

By exposing officers’ histories of misconduct and enacting laws aimed at rooting out corruption and abuses, we can work to create a blueprint for building trust and legitimacy between law enforcement agencies and the communities they are designed to protect.

Laura Iheanachor is senior counsel at CREW, where she specializes in litigation and advocacy initiatives to promote ethics, accountability and transparency in government. Diamond Brown is policy counsel at CREW, where she crafts advocacy initiatives to enhance ethical and transparent government practices.