Category: US Politics

Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 2

Labour rights, Police and Policing, Scotland, UK, US Politics, USA

This is Part 2 of a two-part blog post by Prof. Paul Clark comparing police discipline in the US and the UK. It identifies aspects of the UK approach to police discipline that could have a positive impact on the discipline process in the US.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

One of the key differences between police discipline processes in the UK and the US that could have a positive impact on the US process is the UK’s emphasis on learning versus punishment.  In 2020, an in-depth analysis of the police discipline and complaint process in England and Wales led to major reforms.  One of the significant changes made was to establish “a culture of learning” as a key part of the discipline process. Toward this end, police supervisors are directed to divert incidents that do not constitute misconduct into either “an unsatisfactory performance procedure” or “a reflective practice review,” both of which help police officers learn from their mistakes and remain on the force.

The emphasis on learning and correcting behavior that UK law enforcement has adopted in recent years is an approach that American police unions and police departments, should consider.  In the long run, working to create a culture of learning in US police forces would have many benefits.

Photo bt King’s Church International on Unsplash

Another mechanism that US law enforcement should consider to build public confidence is independent oversight boards.  These agencies play a much bigger role in policing in the UK than in the US.  In England and Wales, the Independent Office for Police Conduct (IOPC) oversees complaints about police misconduct.  The Police Investigations and Review Commissioner plays this role in Scotland and the Office of Ombudsmen does so in Northern Ireland.  These processes are clearly works in progress and they receive mixed reviews from police federations, and sometimes from the public, but to ensure that police do not investigate police behind closed doors, these agencies are necessary.

There has been a movement in recent years in the US to establish such bodies.  However, only about ten percent of police forces have done so and they are mostly in urban areas with large police forces.  And their performance has been mixed.  Still, independent oversight of police forces appears to be a necessity if public confidence in police is to be increased.

US law enforcement also needs to adopt a national database to identify police officers who have been fired for misconduct or incompetence, like the ones that exists in the UK.  Currently, in the US only a handful of states keep such a list.  Unfortunately, in many states officers fired by one police department are regularly hired by police forces within that state or in other states. A national list would identify officers fired for cause across the country.  Any officer appearing on this list would be banned from being hired by any other police force.

Finally, the extremely decentralized nature of the American law enforcement system means that police disciplinary systems are established by each separate police force.  In the UK, the police disciplinary processes are national in scope.  This means that there is one disciplinary process that covers all police in England and Wales, one that covers all police in Scotland, and one that covers police in Northern Ireland.  These national processes bring consistency to police discipline in each country.

With 18,000 police forces in the US (compared to only 43 in England and Wales, and one each in Scotland and Northern Ireland), there are essentially 18,000 different discipline processes.  This is highly problematic.  It means that reforms to the police discipline system in the US cannot be implemented on a national basis.  However, individual states do have the authority to order changes for the police forces in their state.  The widespread reform of police discipline processes in the US would most effectively be accomplished on a state-by-state basis.  Establishing a consistent police discipline process across all fifty states is unrealistic. Yet, it might be possible to get a significant number of states to adopt such a process.  This would be an important step towards improving the effectiveness of American police discipline processes.

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Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 1

American law enforcement, Conflict, Labour rights, Police and Policing, Punishment, Security, UK, US Politics, USA

This post is the first of a two-part blog by Prof. Paul Clark comparing police discipline in the US and the UK. Part I focuses on the relevant similitudes and differences between police discipline in the two countries and highlights the connections between police trade unions and police discipline.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

Recent high-profile cases of police misconduct in the U.S. have heightened racial tensions and increased public awareness of systematic problems in American law enforcement.  The deaths of George Floyd and Breonna Taylor at the hands of Minneapolis and Louisville police in 2020 were met by widespread protest around the world and for calls for police reform.

Photo by Gayatari Malhotra on Unsplash

The fact that Derek Chauvin, the officer who knelt on Floyd’s neck causing his death, had 18 complaints regarding serious misconduct filed against him since 2001 and was still working as a police officer, has contributed to the impression that American police are not being held accountable for their actions.

In the wake of these concerns, the movement to reform American policing has gained momentum.  This reform movement is looking at all aspects of American law enforcement including oversight, funding, training, use of force, hiring, pay, and recruitment.  However, one important element that has received minimal consideration in discussions about reform are the processes for disciplining police officers accused of misconduct.

While the British public has concerns about police misconduct, police are viewed more favorably in the UK than in the US.  In surveys conducted in 2020, 74 percent of people aged 16 and over in England and Wales reported having confidence in their local police, while only 48 percent of Americans held that view.

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

To learn more about the UK police complaint and discipline processes, I spent the spring of 2022 in residence at the University of Edinburgh’s Global Justice Academy and the University of Oxford Law School.  Because England and Wales, Scotland, and Northern Ireland each have their own systems of law enforcement, they each have their own police complaint and discipline processes.  In the course of my work, I gathered information about the three processes and conducted 37 interviews with parties involved in these processes—police forces, police federations representing officers, independent public oversight agencies, and neutral hearing officers.  An analysis of the data collected identified a few elements that differ significantly from the discipline processes in the US and that, in my view, have potential to improve what is now, in many cases, a problematic process in the US.

Police disciplinary processes in the UK and the US have some elements in common.  Disciplinary processes are utilized to deal with both public complaints about officer conduct and internal charges made by police colleagues or supervisors.  Public or internal charges can result in an investigation into an officer’s conduct.  The results of the investigation are considered by police administrators and the charged officer (and the officer’s representatives) are given opportunities to respond.  If the charges are not resolved, the case can go before a neutral third party who renders a decision.

Photo by King’s Church International on Unsplash

One significant difference between the US and UK systems of law enforcement is that the majority of police officers in the US belong to trade unions (57.5 percent in 2019) that have the right to collective bargaining. Some of these police unions, mostly in large cities, have used their bargaining power to negotiate contract clauses that make it harder to discipline their members. These unions also generally take a more adversarial approach when advocating for their members in the discipline process than their counterparts in the UK.  For these unions, “defending the member at all costs” is the priority, even when the officer or officers involved have engaged in problematic behavior.

A recent analysis found that in 624 police discharge cases heard by arbitrators (neutral third parties) nationwide between 2006 and 2020, police officers were reinstated to their jobs 52 percent of the time. During the same period, in Minneapolis, in six of eight cases involving the discharge of police officers, the charges were overturned, and the officers returned to their jobs.

In the UK, police are not permitted to be represented by a trade union.  Instead, officers at all ranks are represented by professional associations that advocate for the good and welfare of their members (for example, constables, sergeants, and inspectors in England and Wales are represented by the Police Federation of England and Wales), but do not engage in collective bargaining.  While these federations and associations fight for their members when they feel they have been treated unfairly, they also tend to look more broadly at what is good for the policing profession and for the community.  In some instances, they may put the interests of the profession and the community ahead of those of an individual member.  For example, they might try to counsel a problematic officer into resigning from the force, rather than fight to get their job back.  One long-serving police federation representative told me he thought “he might be responsible for getting rid of more bad cops than the police force had.”

Certainly, some police unions in the US do what they can to make sure that officers not suited to policing do not continue to serve.  But in some notable cases where unions have won reinstatement for officers accused of excess force, racism, or corruption, these officers have continued to engage in misconduct. If they want to increase the public’s confidence in their members, the more aggressive police unions need to moderate their approach to representing their members and emphasize what is good for the profession and the community.

In addition to moderating their defense of “bad cops,” some US police unions need to consider rethinking existing contract language that makes it difficult for police departments to discipline officers (while still ensuring that they receive appropriate due process).  Both changes would have a positive impact on how the public views the police.

Finally, it should be noted that an additional reason that police officers fired for misconduct in the US (and sometimes in the UK) are put back on the job is that police management sometimes does a poor job of investigating and building discipline cases against officers.  Bringing a weak case before a neutral third party greatly increases the chances that a union will win the case and enable an undeserving officer to retain their job.  Where this happens, police managers need to improve their performance.

Continue reading part 2 of this two-part blog.

 

 

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Lessons on the Law and Politics of US Impeachments

Constitutional Law, Impeachment, US Politics, USA

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the military occupation of the Palestinian Territories and other occupied lands.

 

On 15 January 2020, the Edinburgh Centre for Constitutional Law and the Edinburgh Centre for Private Law hosted Saamir Nizam’s presentation of ‘The Law and History of Impeachment under the US Constitution’. Now practicing law in Scotland, Nizam worked as a lawyer, legislative assistant and investigator for the US congress in the 1990s including during the Clinton impeachment process. He further participated in several national and international investigative efforts including, inter alia, the International Criminal Tribunal for the Former Yugoslavia. In an in-depth presentation, he managed to not only explain the relevant US law to those who are not familiar with it but further invited the audience to think about the greater political process involved.

Mr Nizam began by outlining the two main functions of the US Constitution, the first being the constitution of the government and the second being the restriction of its power. He then illuminated the methodology of how to analyse these provisions to give them their proper legal

US Constitution, US National Archives

meaning. Looking at the history of the Constitution, he noted that in 1787 James Wilson articulated the meaning and the process of impeachment in 1787 with the idea that no president would become a monarch such as in England. In other words, the president must be strong enough to fulfil the position as commander and chief but not so powerful as to be able to set aside the legislature and the Supreme Court. The four impeachment cases across US history each revealed different lessons that could be instructive for the future.

(I) In the 1868 case of Andrew Johnson, who tried to dismiss Secretary of War Edwin Stanton after Congress limited his ability to fire Cabinet officials, the Senate voted him guilty with a majority of 35 to 19.. Despite the majority finding of guilt, the constitutional threshold for an impeachment conviction is two-thirds so Johnson remained in office. Thus, even with an overwhelming majority opposed to a President, conviction and removal from office can fail by just one vote. This account demonstrates that while the process of impeachment is legal, it can and must also be viewed as a political process. However, aside from the relevant articles found in the constitution, at that time, there were no detailed laws or regulations relating to impeachment.

(II) The near-impeachment of President Richard Nixon following the Watergate scandal proved, again, the power of the spectre of impeachment. Not only did it lead to his resignation on 9 August 1974, it also demonstrated that even a popularly elected president can lose his political support and be subjected to impeachment when crimes are committed. In this regard, the Special Prosecutor and especially the Supreme Court were pivotal players in the effort against President Nixon. However, the process demonstrated that the process had become too political. A need for a law dealing with the investigation and prosecution leading to impeachment was needed. This led the Office of Legal Counsel, Department of Justice, to adopt guidance on the Legal Aspects of Impeachment: An Overview in 1974.

(III) With the impeachment of William (Bill) Clinton in 1998 in the aftermath of his affair with Monica Lewinsky, Kenneth Starr was authorised to investigate in the matter. However, Starr’s performance revealed that the Independent Counsel, who serves as a prosecutor, was too powerful and open to abuse. Though Clinton was not convicted, once again, the process was shown to have become too political – more detailed rules and additional controls on the Independent Counsel’s investigative and prosecutorial powers were needed. This led to the Office of Special Counsel replacing the Office of Independent Counsel in 1999, defined by regulation 28 CFR 600.

(IV) In the most recent case, Donald Trump was conveyed for impeachment by the House of Representatives in December 2019 after a whistle-blower revealed information regarding a call with Ukrainian President Zelensky. In the call, Trump coerced the Ukraine to provide damaging stories about Democratic candidate Joe Biden and his son. The Ukraine’s failure to cooperate would have resulted in Trump reneging on a $400 million (USD) military aid package to the country. With the Speaker of the House Nancy Pelosi naming the impeachment managers to conduct the prosecution on the exact day of the event, Nizam illustrated the subsequent process which is currently proceeding in the Senate. A vote in the Senate will ultimately decide on whether President Trump will be acquitted or convicted and removed from office.

History shows that the law of impeachment can be very powerful, as in the Clinton era, or rather weak, as in the case of Johnson. However, the outcome of such a proceeding always remains uncertain. The process of impeachment in American law is ‘a political body wearing legal clothes’ – ultimately, politics will decide the outcome. The power to remove a democratically elected president should not be underestimated – not least with regard to the possible consequences an impeachment might have on the voting public. Overall, Mr Nizam offered a captivating and engaging presentation covering over 200 years of legal history, moving effortlessly between the theory behind the process and its use in practice. Ending the evening with an optimistic outlook, he concluded that it is in challenging times such as the present when the US Constitution can demonstrate its real value and legal power. Looking at the US Constitution as an ‘evolving’ document, the Trump impeachment experience will also have its lessons for future generations.