The Road to Police Reform
W. David Ball
George Floyd’s fatal arrest by Minneapolis police last month—and the ensuing protests about racial inequality and police brutality—are forcing America to confront both its ugly history of racism and its unwillingness to tackle meaningful police reform.
At Santa Clara University’s School of Law, Professor W. David Ball says reform in particular will happen only when citizens demand and obtain transparency from law enforcement agencies about problem officers, and hold those agencies accountable for their actions. Floyd’s killer, Derek Chauvin, who has a history of almost 20 complaints against him over 20 years, was rarely disciplined.
Observers say that is often the case because officers accused of misconduct are tightly protected by union contracts negotiated at the municipal level. To Ball and other criminal law experts, if members of the public want to enact real change, the answer isn’t sexy: they must pressure elected officials to do so at city council or county board meetings, particularly when police union negotiations are on the line.
Ball, whose work focuses primarily in the fields of criminal justice, criminal procedure, sentencing and corrections, was interviewed by several Bay Area media outlets about his insights on the issue, which he also shared with Illuminate.
One of the outgrowths of George Floyd’s death has been a call to abolish or defund the police. What does that look like to you?
It means taking some money from law enforcement budgets and diverting it to solving the societal problems that lead to people being arrested in the first place because of things like homelessness, mental health issues, and substance abuse. It means asking: What do we want the police to do? And why are police the first responders? Why not have a system where if there is a homeless person living on my street, you know who to call to take care of them—give them support, not just criminal sanctions?
There's an interesting story this month about how police departments in three cities (Sacramento, New Orleans, and Montgomery County, Md.) have spent time on the job so far this year, and it shows that the share involving violent crime is about 4 percent. A lot of it is routine calls for service; very little of it has to do with responding to violent crime, but that’s what we have in our minds. So we should think about why we have an agency built to focus on violent crime if most of its time is spent elsewhere. Why not have a smaller agency to respond to violent crime and figure out what other agencies should respond to other problems?
You’re a proponent of a program called Law Enforcement Assisted Diversion. What is that?
Like all of us, police get annual reviews, and they are evaluated using different productivity metrics. For many police departments, officers are evaluated based on the number of arrests they make. But what’s interesting about the LEAD program is that officers who participate in it get the same credit for referring people to social services—for issues like drug addiction or prostitution—as they would have if they arrested that person.
When you think about it, for these people, being in jail will not make them better or solve their problems. And once you have an arrest record, it makes it harder to get employment. It does no one any good. It’s also expensive and ineffective; it hurts people and I think that’s what’s missing for many police departments. There needs to be more new thinking.
(Update: After protests against police violence, Los Angeles Mayor Eric Garcetti recently agreed to divert some funding expected to go to the police department’s new fiscal year budget to instead address problems in the Black community. Similar movements are gaining traction in New York, Minneapolis, Dallas and Philadelphia among other cities.)
What’s your version of the best use of police?
How often do police stop a violent crime in progress? Almost never. So much of police work is about investigating crime after it has occurred. In the most populous U.S. cities, less than half of all homicides lead to an arrest. If police were able to spend less time arresting people who need social services, and more time preventing violent crime, that to me is the best and highest use for police.
You believe police reform will happen more quickly if citizens would take the time to attend certain local government meetings. How realistic is that?
The local level is where the action is. Local governments negotiate police contracts, with information like how easy it is to terminate problematic officers and decide how much money goes where. These are often long and detailed fights, and it’s not something people really rally around. But if you want to weigh in about how we spend our taxpayer money and how our police unions negotiate with our cities, people need to start going to local budget hearings.
We also need more information generally. It’s very difficult to find out if police officers were fired from their jobs for poor or even illegal performance. It should not be. If there is a police officer testifying against me, under a U.S. Supreme Court case called Brady v. Maryland, I should be able to access all information which might be favorable to me, including information from a police officer’s personnel file. In California, those files are considered confidential, making access to that information unnecessarily—and in my view unconstitutionally—difficult. Between a citizen’s due process and an officer’s confidentiality, I think the citizen’s interest is more important.
You have said that the only way to understand systemic problems is to have access to systemic data. Can you elaborate?
Every single multi-billion dollar organization in the business world collects and analyzes. But we don’t collect, analyze and disseminate nearly enough information in law enforcement. You can also have perverse incentives in the current, opt-in system. The Santa Clara County D.A.’s office has just started a racial breakdown of crimes. That’s great. But other counties don’t produce that information, so ironically, Santa Clara looks bad, even though counties which aren’t producing the data are probably worse.
A front-line prosecutor told me, “All this does is make us look terrible.” He's worried that Santa Clara County will be pilloried for what they are revealing, compared to some places like Kern or San Bernardino County. I am of the opinion that it should be a requirement for every county.
You've spent years trying to help reform the criminal justice system, something you believe aligns with SCU’s Jesuit values. How so?
When we step back, we need to ask, “Why are we doing what we are doing? What is our theory about crime? What are the conditions that lead people to hurt other people? Why do people steal cars? Do they steal because they are bad and need to be punished?” If you believe that, then our system makes sense. My guess is that they are poor and don’t have a way of earning a living or making ends meet.
One in five children in the U.S.—15 million—lives below the federal poverty level and nearly half of children in America are classified as poor or near poor. But we’re the richest country on Earth. We need to expand access to pre-school education, low-income housing and mental health and psychiatric care, to reduce “crimes” like trespassing. Yes, all of those things are expensive, but consider the amount of money we spend on prisons and jails.
Ironically, this isn’t a newfangled idea. William Blackstone, the 18th century jurist beloved by originalists like the late U.S. Supreme Court Justice Antonin Scalia, said, “Preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice.”
I think we should consider a return to that.