Cooperative Federalism and Police Reform: Using Congressional Spending Power to Promote Police Accountability
Kami Chavis Simmons
Wake Forest University Law School
April 6, 2011
Alabama Law Review, Vol. 62, No. 2, p. 349, 2011
Wake Forest Univ. Legal Studies Paper no. 1852591
Police misconduct and corruption persist in our nation’s local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the “DOJ”) the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government’s current strategy represents a promising model for reform, the DOJ’s efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play a more active role in implementing institutional reform of these agencies, and they must have the flexibility to develop locally tailored police accountability measures. This Article proposes a model that encourages federal–state cooperation to address the longstanding questions of how best to promote police accountability within local law enforcement agencies and which entities should be responsible for implementing reform. Congress, pursuant to its spending authority under the U.S. Constitution, should condition federal funding to state and local law enforcement agencies upon the state’s development and implementation of regulations to reduce police misconduct and promote police accountability. Specifically, this Article proposes an amendment to the statute authorizing the Community-Oriented Policing Services (“COPS”) program. This Amendment would require the federal government to withhold 5% of COPS funding from states that fail to implement measures to reduce police misconduct and promote police accountability. The COPS program has distributed billions of federal dollars to states to hire police officers and implement community policing programs, but the authorizing statute includes no requirement that the agencies receiving these funds ensure the accountability of the officers they hire. Pursuant to the model proposed in this Article, states would develop their own standards to promote police accountability and reduce police misconduct, while the DOJ would determine if the measures met minimum federal guidelines. Thus, the proposed regime is consistent with “cooperative federalism,” a process in which states implement federal standards, yet retain the flexibility to develop and supplement those standards. This Article explores several justifications for implementing this scheme, examines the constitutionality of the proposed amendment, and concludes that the proposal is a viable tool to achieve sustainable reforms in the nation’s local police departments.
Number of Pages in PDF File: 53Accepted Paper Series
Date posted: May 28, 2011
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