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Policing Post-2020

May 19, 2021

Faculty discuss changes in the policing landscape

The Carrico Center for Pro Bono & Public Service brought together experts for its April 12 “Law Over Lunch” CLE event to discuss not just changes in policing post-2020, but also the groundwork of the juvenile justice system. “How are we policing? How are we reviewing policing? And what can we do to prevent certain tragedies from occurring in the future?” asked Tara Casey, director of the Carrico Center, in her introductory remarks. Julie McConnell, director of the Children’s Defense Clinic, joined Jack Preis, who teaches and writes in the areas of federal courts, qualified immunity, and civil rights litigation, to explore that question.

As a former prosecutor and a former public defender, McConnell brings a unique perspective to the examination of policing in the 21st century. Today, her primary focus is on children’s defense and juvenile justice. McConnell cited a recent case in which a school resource officer in South Carolina pulled a girl away from her desk and threw her to the floor when she did not immediately put away her cellphone. McConnell explained that many school resource officers may do good work, but “what often happens is that incidents in school that should be handled in school instead get sent to court, particularly in marginalized communities.” Her concern is that “when those cases go to court, they often also are accompanied by an expulsion or suspension from school,” and that contributes to the “school-to-prison pipeline.”

The concept of the school-to-prison pipeline really exploded in the 1980s. “We really focused more on punishment rather than treatment or rehabilitation, and we've paid the price,” said McConnell.

The end result is some startling racial disparities: The suspension rate for Black students in Virginia is 4.5 times higher than the suspension rate for Hispanic or White students. “Even though Black students only make up 23% of the statewide student population, they received 57% of long-term suspensions,” McConnell said. “When kids are suspended and expelled, they're not getting an education, meals, access to the internet, or supportive teachers,” she added.

Nevertheless, McConnell points to some positive reforms.

  • In Virginia, the General Assembly recently modified the number of cases for which youth can be tried as adults. Prosecutors must consider the juvenile’s adverse childhood experiences, trauma, and/or foster care interaction. “If they're tried in the juvenile system, rather than the adult court, the most time they could get for a very serious violent felony would be juvenile life until they're 21,” said McConnell.
  • The Commonwealth can no longer require a child, as a condition of a plea agreement, to waive their right to a statutory review of a serious offender sentence. These reviews allow the court to suspend some of the original sentence if the juvenile has been rehabilitated.
  • In terms of mass incarceration, judge sentencing, rather than jury sentencing, will be the default. This should help significantly reduce the length of sentences imposed because judges will have the option to suspend part of statutory sentences. Juries could never do this.
  • For the first time, the General Assembly will allow evidence of diminished capacity during the guilt phase of criminal cases when it is relevant to intent. The General Assembly also ended the presumption against bail that previously made it difficult to get pre-trial release in many criminal cases.  
  • Finally, the General Assembly, made progress on expungement. Low-level misdemeanors will automatically be expunged after 10 years and there will eventually be a petition process to request expungement of certain felonies.

“We've got to stop using the carceral system to address our social problems,” McConnell added. “We have refused to fund our social safety net for so long that we've been forced to use the criminal justice system in its place and it has failed miserably.”

While McConnell focused on “front-end reforms,” Preis addressed “back-end reforms” – changes to how courts evaluate and punish police misconduct after it has occurred.  Preis recounted three contexts in which courts evaluate police misconduct: in a criminal action against the victim pursuant to the exclusionary rule, in a criminal action against the officer, and in a civil action against the officer. The first two contexts have several flaws, he explained, including the absence of any compensation for the victim. The third context holds out the possibility of compensation for the victim, but also has its own limitations. 

A chief weakness, according to Preis, is the doctrine of qualified immunity. To prevail in a civil suit against a police officer on a constitutional claim, the plaintiff must show not only that the officer violated their rights, but also show that the violation was, in effect, egregious. Preis cited the example of Robles v. Prince Georges County, a 2002 case in which the Fourth Circuit held that officers were immune from suit even though they had engaged in “Keystone Kop activity that degrades those subject to detention and that lacks any conceivable law enforcement purpose implicates federal due process guarantees.”  For Preis, the case is telling in that “the way the federal court was so willing to acknowledge how unfair qualified immunity is.”

Preis identified several reforms to civil suits against police officers. Aside from changes to qualified immunity, Preis also suggested that seemingly mundane budgeting practices can have a real impact. In many jurisdictions, settlements are paid out of a general fund segregated from the police department’s own budget. Under this arrangement, the department faces no financial consequences for officer misconduct and thus has less incentive to better train and discipline its own officers. 

One of the key takeaways for both McConnell and Preis was the need for change at the systemic level. As Casey pointed out, “One of the recurring themes that comes up when we talk about law enforcement reform is bad apples versus systemic issues.” Preis borrowed from colleague and scholar Barry Friedman to address that issue: “There’s always going to be a problem with bad apples. But we shouldn’t think that it’s [just] bad apples, because the reality is that the entire orchard is unregulated,” he explained. Against the backdrop of 2020, both McConnell and Preis pointed to a combination of policy change, legislation, and deterrent regulations in addressing potential policing reforms in a systemic way.

-By Salua Kamerow, L’22