Bringing More Transparency and Accountability to American Police Departments

Executive Summary and Introduction

• In order to prevent future tragedies, public unrest, and costly litigation, police agencies should not hire problem officers.
• Congress should codify the National Law Enforcement Accountability Database (NLEAD) into law.
• Congress should require police departments to turn in officer misconduct and crime data to receive any federal law enforcement funding.

Individuals cannot thrive in unsafe communities. Violent and property crimes drive out businesses—taking jobs and basic consumer goods out of communities that need both most acutely. Even more fundamentally, people who are afraid to go out in their own neighborhoods become traumatized by crime victimization and lack of personal security, which can lead to a panoply of negative life outcomes and can further drive cycles of violence and trauma. Providing safe communities is one of the fundamental purposes of government, and yet so many of America’s poorest residents also suffer from close proximity to intolerable rates of crime and violence.

Police, those charged with ensuring communities are safe, are at once one of the most visible and recognizable government employees, and yet most Americans know so little about what they do or how well they are doing it. The tumultuous protests of recent summers drew loud calls for transparency and police accountability following high-profile police shootings and public revelations of widespread police abuse. Popular movements like Black Lives Matter nurtured calls to “defund” or “abolish” the police, rejecting the traditional role of law enforcement to protect communities, particularly communities of color. Since then, violent crimes—particularly homicides—have fluctuated in many cities, leaving many Americans feeling less safe. Spikes in homicides in certain cities helped fuel a political backlash that echoed the “tough on crime” policies of the 1980s and 90s to undo recent sentencing and other criminal justice reforms. 

Both the pro-police and anti-police extremes miss the basic realities that policymakers  need to consider. Contra self-styled abolitionists, police are a necessary part of local government and are not going anywhere in the foreseeable future. At the same time, police officers too often escape accountability when they run afoul of the law or violate department policies, despite union protestations and dubious arguments from police apologists. Poor Americans are far more likely to be harmed by violence and abusive police officers, partly because they are over-policed for minor crimes but under-policed to protect against violent crime. Poorer Americans typically lack the political capital and access to lawyers to counter officer abuse. Improving policing is, therefore, essential to improving opportunities for the poorest and most vulnerable Americans.

With an estimated 18,000 state, county, municipal, and federal law enforcement agencies across the United States, collecting and organizing information about crime and police on a national level is daunting. Although crime tends to be a very local phenomenon, crime data can show whether certain crimes are part of national or regional trends that may require interstate cooperation or additional federal resources to address. Likewise, officer-centric data can show how often officers use force—to determine who is using it inappropriately or too often—and whether problem officers are finding new police jobs after leaving positions under clouds of suspicion. Ultimately, these data help provide accountability to police officers and organizations. 

Although three successive presidential administrations have issued executive orders related to policing, any lasting and meaningful federal action in law enforcement will require legislation. Even then, federal power is limited by the decentralized structure of the government, meaning state and local police will need a reason to buy in to any new Congressional plan. Structured properly, however, Congress and municipal self-interest can bring more transparency and accountability to American police departments. 

In order to prevent future tragedies, public unrest, and costly litigation, police agencies should not hire problem officers

The poles of the American policing debate paint two very misleading pictures of American cops. On one extreme, pushed by abolitionists and other activists, policing is an inherently exploitative abuse of Americans—specifically poor minorities—and “All Cops Are [Bad guys].” On the other extreme, most vociferously peddled by police union representatives and political culture warriors, police reforms are “oppressive” and pushed by “terrorist movement[s].”

There are good and bad cops, and though the vast majority of officers perform their jobs honorably, departments must be better at finding and removing problem officers from America’s police forces. But the truth remains: hundreds of thousands of Americans took to the streets because they don’t trust the police to do the right thing. 

That said, as one report found, “Less than ten percent of officers in most police forces get investigated for misconduct,” whereas some of that minority rack up complaints regularly. The officers in this minority of repeat problem officers are the target of this essay. 

In addition to harming citizens and eroding community trust in police—which, among other things, probably hinders recruitment and retention of quality officers—bad cops impose significant financial costs on city and county budgets. The Washington Post collected data on nearly 40,000 civil settlements at 25 of the nation’s largest police and sheriff’s departments. Over a ten-year period, the Post found that those county and city governments paid more than $3.2 billion to settle lawsuits against law enforcement. More than 1,200 officers in those departments were named in at least five settlements, and more than 200 were named in ten or more. 

When broken down into metro areas, the numbers can get more stark. One investigation found that, over 12 years, San Francisco area law enforcement agencies paid out $70 million plus legal fees to complainants. From 2019-2022, Chicago paid $171.7 million for complaints against roughly 1,000 officers; complaints against 116 officers represented 53 percent—$91.3 million—of that amount. And in 2022 alone, New York City paid out $121 million to settle police misconduct lawsuits. Departments need to be better about getting bad officers off the streets, but sometimes, that is not enough to keep communities safe. Thousands of problem officers find jobs in other jurisdictions where they can start over to offend again. 

The ‘wandering officers’ problem

Sometimes, officers quit their jobs before they can be terminated and decertified, meaning they often remain eligible to be hired as officers in other jurisdictions. Six states don’t have police decertification at all, and the quality of decertification in the rest of the states varies so widely that many problem officers fall through the cracks. Indeed, given labor arbitration and other job protections for police officers in many departments, officers who hop from jurisdiction to jurisdiction are likely to have raised multiple red flags before moving on. As a result, these officers often escape accountability and victimize more people in other jurisdictions.

Just a handful of examples help illustrate how bad the “wandering officer” phenomenon can get: 

• A former San Antonio police officer who gave a homeless person a sandwich filled with feces was rehired as an officer in another Texas town.
• An officer fired for “overaggressive tactics” in North Carolina was rehired by a department ten miles away, where he tried to pull an 88-year-old man through a car window for not responding to commands fast enough. 
• A three-time officer in Ohio was fired from his first job for perjury, quit a second job during an investigation into missing police equipment, and later was charged with a felony. He was hired as a police chief on his third job, where he likely committed more crimes. 
• One Florida officer resigned from three police agencies “before turning the Crestview Police Department into a “criminal enterprise.”” He was eventually convicted and sentenced to 12 years in prison for bribery, excessive force, intimidating officers, and other charges. 
• An Arizona Department of Public Safety officer transferred to be a commander in Buckeye, where he “received at least six complaints that he threatened his co-workers’ job security, intimidated employees and harassed a co-worker based on her sexual orientation.” He moved to Gila River, where he was fired for cause and was alleged to have violated procurement and hiring ethics. As the Gila River report was released, he was named chief in Nogales, where he was eventually allowed to retire while under investigation again.

While these are likely among the worst stories, thousands of police officers in the United States have found other law enforcement positions after disgracing themselves and the badge they wear. The ability of bad police officers to fail themselves into new jobs puts the public at risk and damages the reputation of honest, hardworking officers across the country. The vast majority of American police officers go to work and do their job honorably, and they pay the reputational price for bad officers. 

The Limits of Executive Orders

Although the federal government does not have the authority to direct local law enforcement agencies to improve internal discipline, it can provide information—and incentives—to prevent bad officers from finding work in other police departments. An easily accessible national database with disqualifying disciplinary information for current and former officers could be integrated into standard hiring practices for every police department. This database could dramatically reduce the number of bad officers finding new law enforcement positions. 

In 2022, President Biden issued Executive Order (EO) 14074, which tasked the attorney general to establish the National Law Enforcement Accountability Database (NLEAD). NLEAD would record the terminations and serious disciplinary actions of problem officers in the federal ranks. As of 2020, the federal government employed just over 136,000 sworn law enforcement personnel. While this is a small portion of American law enforcement, all American police departments and state decertification agencies have been invited to contribute to and will have access to the information. 

With enough participation, this centralized, national database will allow the country’s roughly 18,000 law enforcement agencies to check if their applicants have been under serious disciplinary investigation in other jurisdictions, not just in their state, but potentially anywhere in the country. 

An officer’s inclusion in NLEAD would not bar them from being rehired, but would enable the hiring jurisdiction to make their decision with the most possible information. The database can serve as a benefit to the officer, who has a chance to explain himself during the hiring process, and also for any future plaintiffs who can show that the department knew or should have known the officer they hired had a history of misconduct or unnecessary violence. NLEAD strongly incentivizes departments to thoroughly vet their new hires and accept full responsibility rather than claim ignorance if something goes wrong. 

Despite the language of the EO, NLEAD is not yet fully operational. In the spring of 2023, the U.S. Department of Justice (DOJ) provided an update to establishing the database:

[The DOJ] partnered with the International Association of Directors of Law Enforcement Standards and Training (IADLEST) to establish the National Law Enforcement Accountability Database. IADLEST runs the National Decertification Index (NDI), a national registry of law enforcement de-certification and revocation actions relating to officer misconduct that is currently used by all fifty states and the District of Columbia. The Department is working with IADLEST to: (1) expand upon the existing NDI to include the additional categories of information required by the Executive Order; and (2) establish a system for making available Federal law enforcement records based on the NDI model. The Department aims to have the database launched by the end of the year.

The NDI is up and running, but relatively few departments use it, and the creator of the NDI believes that is because many departments don’t know about it. Federalizing the database should significantly increase awareness of its existence and, as explained below, Congress can spur more departments to use it. 

Congressional Action 1: Codify the National Law Enforcement Accountability Database

A law codifying and funding NLEAD into the future can better ensure its benefit to law enforcement agencies and the general public. 

In recent years, each party has prioritized criminal justice and police policy while they hold the White House. But, ultimately, that support only lasts until the other party assumes executive office. EO 14074 established NLEAD and other Biden administration priorities, but it also revoked Executive Order EO 13809 from August 2017 and EO 13929 from June 2020. Both revoked EOs were from the Trump administration. The Trump administration’s EO 13809, likewise, had revoked EO 13688, a law enforcement priority of the Obama presidency. Neither the general public nor police officers are served by this partisan back-and-forth, and Congress should step in to enact the best of both parties’ criminal justice reforms. Codifying NLEAD to keep bad cops off the street should be at the top of Congress’ criminal justice to-do list. 

Current problems with police-collected data

While the most recent city-driven statistics indicate a large decline in homicides nationwide in 2023, gaps in national crime data collection leave Americans with an incomplete picture of crime trends. 

Although individual crimes tend to be a local phenomenon, knowing what happens across the country regionally and as a whole can show whether or not violence and other crimes are trending up, down, or holding steady. Also, the data allows citizens to understand what is happening in their communities and what the police and broader criminal justice system is doing about it.

It’s hard to overstate how consistently incomplete police and crime data collection has been over the years. Until independent investigations by the Guardian and Washington Post, the best estimate policymakers and analysts had for measuring how many individuals police kill in the line of duty every year was roughly 400. The original work and the Post’s ongoing data collection puts the number around 1,000 annually, meaning the official estimate missed one-and-a-half times more killings than it counted. Even though the vast majority of police-involved shootings were legally justified, the massive gap between what police reported and the number of people killed is another reason many people do not trust law enforcement. If the police cannot be trusted to report when they legally kill someone, it is natural to assume there is other important information—particularly about mistakes and misconduct—that remains hidden from the public.

The federal government’s role in local law enforcement is very limited. The Constitution’s federalist structure leaves the general police power to the states, meaning local governments have the most control over local affairs. This system allows for creativity and experimentation so that different jurisdictions can set local laws and priorities according to their constituencies. It also means that the federal government cannot compel state and local law enforcement agencies to perform any task or impose any national policy without specific court orders in cases of consent decrees or other systemic abuses.The federal power over state and local law enforcement is mainly limited to restrictions on certain conduct—e.g., suspicionless searches, unlawful confinement, or excessive uses of force—found by federal courts to violate specific constitutional rights.

Because of these limitations, any law enforcement agency’s cooperation with the federal government must be voluntary. Voluntary, however, does not mean without incentive. Congress can provide positive and negative incentives for non-federal law enforcement agencies as long as they are not unduly coercive. That is, the federal government cannot put states or local governments in an untenable position, effectively preventing them from saying no.

Congressional Action 2: Tie all future law enforcement funding to NLEAD and NIBRS cooperation

States and municipalities are responsible for the vast majority of police department funding. The federal government sometimes provides grants to police departments, often through the Community Oriented Policing Services (COPS) office, that usually amount to a relatively small sum. However, asset forfeiture and “equitable sharing” agreements from police cooperation in federal task forces–in addition to equipment provided to local police at a steep discount–can add up to millions of dollars. 

For example: 

In 2021, [the Chicago Police Department (CPD)] reported to the state that it had seized assets worth a total of $8,192,379.43. In the same year, the [U.S.] Department of Justice reported paying CPD a total of $420,205 in “equitable sharing payments of cash and sale proceeds” from seized assets. For FY 2022, CPD reported receiving three grants titled “Asset Forfeiture,” two were from the federal government for a total of $2,221,000[.] (via Chicago’s Office of the Inspector General) 

Congress should make these dollars—and all federal dollars going directly to police departments—contingent on timely, accurate, and complete reporting to NLEAD and NIBRS in compliance with federal guidelines for more accessible analysis. Tying these funds to cooperation creates an incentive to provide necessary data, but not to the extent that departments are coerced. For context, the CPD budget for FY 2022 was almost $1.9 billion, dwarfing the $2 million federal forfeiture sum. (Notably, the forfeiture haul is also far less than the $57 million annual average Chicago paid out in misconduct settlements.) At nearly $11 million, Miami-Dade County Police have a sizeable federal grant line item in their budget for FY 2022-23. Still, the department’s expected budget allocation for that year exceeded $876 million, and its expected expenditures totaled $857 million. Again, withholding that federal money would be significant in the police budget, but the department would not be ruined without that revenue stream. 

Two-thirds of American law enforcement agencies already participate in NIBRS, so that segment of the requirement will not affect most police departments. Through Byrne Justice Grants, the federal government already provides funds for transitioning to the NIBRS system. It is possible that requiring NIBRS adoption to receive federal money for law enforcement may require expanding the available funds. Congress should work with police chiefs and sheriffs to determine if departments that have not yet transitioned need more help. 

More information, more accountability

Although its role in local affairs is limited, Congress has an opportunity to aid local law enforcement agencies in better serving their communities. Part of that assistance must bring accountability to where it has been lacking for too long. Police departments must be able to rid themselves of problem officers, and the public must trust those officers will not return to the streets. Likewise, policymakers and civic leaders should have the most accurate information available to make their communities safer. 

Instead of issuing more policing EOs, the next president should work with Congress to shepherd these commonsense ideas through the legislative process and sell their benefits to the American people. Rather than succumb to culture war politics, Washington policymakers should craft and implement real policy changes that improve American police and protect American communities.