31 May 2020

Some Reforms To Address Abuses By Law Enforcement And Corrections Officers (With Meta Note)

Some of these are bigger, and some smaller, they aren't necessarily all mutually consistent.

Hold Institutions Responsible

Institutions will make better personnel decisions and adopt better policies if they have liability for wrongdoing.

* Adapt the "takings" jurisprudence to wrongful deprivations of life and liberty by a government or someone acting on its behalf, without regard to intent or knowledge. Thus, the entity whose collective actions and inactions by its employees and agents caused someone to be wrongfully deprived of their rights to life and liberty would be entitled to full compensatory damages and attorneys' fees without regard to the intent of the person doing so or their good faith. 

For example, suppose an innocent person is incarcerated despite a full trial in which there a no constitutional rights violated. The innocent person is still entitled to full compensatory damages and attorneys' fees. Similarly, an innocent person shot and killed due to a good faith mistake of law enforcement is still entitled to full compensatory damages and attorneys' fees. Similarly, if an innocent person's property is damaged by law enforcement to apprehend someone, the individual suffering the harm is entitled to compensation.

Of course, this would still not allow compensation for justifiable use of force from the person whose actions justified the use of force.

* Make governments vicariously liable under the doctrine of respondiat superior for the civil rights violations of their agents and employees. This is true of all other kinds of torts. In practice, almost all governments indemnify their agents and employees fully even though they are not required to, in these contexts, so it wouldn't have a big fiscal impact. 

Possibly allow governments an affirmative defense to vicariously liability if they immediately suspend an officer, fire them before allowing them to return to duty, and prosecute any crime committed which the government alleges makes the action ultra vires.

Holding Individual Civil Rights Violators Responsible

* Repeal the relatively recent, court created doctrine of qualified immunity.

* Reduce the threshold of intent for personal liability for civil rights violations from intentional conduct to at least negligent conduct. For example, civil rights liability should be imposed if a law enforcement officer failed to use ordinary care to avoid raiding a wrong address, or arresting the wrong defendant.

* Clarify the lack of absolute immunity for prosecutors in connection with investigative roles. Some case law makes this distinction but it is buried in contested case law.

* Narrow justifications for the use of deadly force by law enforcement, and the justifications and processes for use of situations posing an elevated risk of  use of deadly force or abuse such as "no knock" raids.

* Do not allow employers to indemnify individuals for amounts that they are required to pay, routinely bring subrogation claims against civil rights violators. Do not allow the right to subrogation to be waived absent a court approved ex post hearing to show that the settlement with the civil rights violator is justified. Do not allow indemnification and subrogation terms to be tie barred in settlements to the merits.

* Make public pensions available an an asset available to civil right creditors and to governments or their insurers bringing subrogation claims against civil right violators.

Make Circumstances Constituting Sexual Abuse Easier To Prove

* Make it a felony for a law enforcement or corrections officer to have sexual interactions with someone in custody, or someone subject to the officer's jurisdiction with whom the officer does not have an existing relationship while not in custody.

* Prohibit mixed gender cavity searches.

* Narrow the circumstances in which strip searches and cavity searchers are allowed.

Reduce Booking And Arrest And Pre-Trial Incarceration

* Prohibit booking and jail (including related strip searches) for offenses that don't carry incarceration is an ultimate penalty.

* Eliminate incarceration or arrest as an option for most municipal ordinance violations and non-violent petty offenses and misdemeanors.

* Create a civil remedy of removal of someone from a situation that is not a crime, e.g. to defuse a situation, that is not reported as an arrest.

* Compensate people not timely convicted for time incarcerated and for attorneys' fees incurred if not represented by a public defender (or some amount in lieu of actual compensation to be a rough justice approximation) as a matter of course.

* Dramatically curtail the use of cash bonds with the vast majority of cases resulting in pre-trial release on personal recognizance with check in measures, or with pre-trial detention without bond.

* Mandate significantly better conditions in pre-trial detention than detention pursuant to a conviction.

* Make screening and treatment for drug withdrawal routine and mandatory for incarcerated persons.

* Do not incarcerate pregnant people in ordinary jails and prisons. Unless absolutely necessary, defer a sentence of incarceration until after birth and nursing, and when absolutely necessary do so in special medical units and do not require women to undergo labor and delivery in chains.

* Don't put law enforcement officers in schools.

* Don't resort to the criminal justice system for misconduct by children outside extremely limited circumstances set by policies known to school officials and law enforcement.

Get "Bad Apples" Out Of Law Enforcement

* Require law enforcement to have "at will" employment even if unionized or otherwise subject to civil servant protections.

* Authorize the finder of fact (jury or judge as they case may be) to remove a civil rights violator from his or her employment and bar him or her from future positions in law enforcement.

* Develop a national black list of people who have been found liable for serious civil rights violations from serving in future law enforcement positions.

* Develop a national database, a bit like a credit report, of instances in which a court or investigation has found a law enforcement officer to be untruthful. Require it to be shared as part of Brady disclosures in every case in which a law enforcement officer testifies.

* Develop a national database on complaints filed against law enforcement officers and their disposition.

* Disqualify officers with prior domestic violence, other violent crime, animal cruelty, fraud, or public trust crime or ethics code violations or protection orders or courts martial offenses from serving for the next ten years after the sentence is complete.

* Mandatory notification of legal ethics boards for Brady violations by prosecutors (i.e. failures to disclose exonerating evidence to the defense), following findings in court cases.

* Mandatory notification of law enforcement registry following findings if court cases that an arrest or search or seizure was made without probable cause.

* Routinely investigate officers and agencies with a history of complaints and violations. Create an option to place an agency under receivership when its violations cross a threshold.

* Routinely bring federal prosecutions for civil rights violations when unduly lenient local sentences are imposed or there are local acquittals in the face of compelling video, physical, DNA, confession, or other compelling evidence.

* Actively discipline prosecutors and judges for ethical violations showing disregard for civil rights.


* Vest prosecutions of law enforcement officers in an agency that does not work with and rely on the cooperation of law enforcement officers in the same unit on a daily basis, ideally an independent state agency co-managed with the public defenders office with its own investigators that is also charged with ethics investigations.

* Allow judges and prosecutors (who otherwise have absolute immunity from liability for their conduct) to have civil liability in any matter where the judge or prosecutor is found by an ethical body or criminal prosecution to have committed an ethical violation or crime, with the statute of limitations running from notice to the affecting person that the finding was made in the ethical or criminal case.

* Remand cases that are reversed on appeal to a new judge as a matter of course in all cases.

* Reduce sentences and overturn final convictions as a matter of course when new substantive statute or court rulings invalidate the sentence imposed as a possible sentence.

* Repeal many of the detailed statutory limitations on habeas corpus relief.

Meta Note

This is post 8100 at Wash Park Prophet. I have made 9914 posts at Wash Park Prophet and its sister blog Dispatches From Turtle Island, combined. There are also 34 posts at my incomplete serial novel blog, Wash Park Poet, for a grand total of 9952 posts on the blogger platform.

This blog is the original one and started on July 3, 2005, not quite fifteen years ago, so I have posted, on average, a little less than 13 posts a week for the last fifteen years.

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