In late May, the Biden Administration released an executive order (EO) on policing to commemorate the two-year anniversary of a Minneapolis police officer killing George Floyd. The effect of the EO is necessarily limited by the lack of federal authority over the day-to-day operations of local police departments, which are responsible for the vast majority of policing in the United States. That said, there are reasons to be optimistic about some of the EO’s provisions, most notably the national register of officers terminated for misconduct called the National Law Enforcement Accountability Database (NLEAD). Keeping bad officers off the force is a positive step toward reducing unnecessary violence and police misconduct.
The limited but underappreciated utility of bad apple theory
When high-profile cases of misconduct hit the news, police leadership and other local officials often respond with the assertion that the officers at the heart of the problem were “a few bad apples” that were not representative of the rest of the department. Many police reformers roll their eyes at the “bad apples” phrase because some investigations of police departments have revealed ineffective oversight, cultures of impunity for repeat wrongdoers, and even small criminal gangs operating within police departments. After all, the bad apple aphorism is not a defense, but a warning about their effects: A few bad apples spoil the whole bunch.
However, critics should not entirely discount the idea of a few bad officers causing disproportionate damage in the communities in which they serve. What little data we have on the frequency of police violence shows that a small minority of officers are often responsible for a very large percentage of violent arrests and misconduct complaints. Too often, these officers quit while under investigation and find jobs in other departments before they can be terminated for misconduct.
The officer who shot and killed Tamir Rice in Cleveland should never have been hired after incidents of firearms incompetence at two previous law enforcement settings. He ultimately was fired by CPD not for killing Rice, but for lying about the circumstances he left his previous law enforcement position in Independence, Ohio. Although this is a justifiable ground for termination, the CPD should have done their due diligence in verifying the information provided by their prospective officer.
NLEAD creates a new incentive for diligence in officer hiring
The landscape of American policing is vast. Roughly 18,000 different agencies enforce overlapping state, local, and federal laws. Collecting and coordinating information from even 10 percent of those agencies would be daunting for most organizations, even if one assumes willing compliance–which recent history provides many reasons to doubt. But mandated compliance by federal agencies should, at least, provide a list of agents that should be untouchable by law enforcement agencies going forward and lessen the burdens for state and local governments to submit the names of their dismissed officers.
Of course, this will be fought on the local levels by police unions and others who seek to protect the names of officers who have been credibly accused of wrongdoing: we’ve seen this before. But now that there is some place the information can go, perhaps law enforcement agencies will be more likely to provide the information of former officers who they either found or suspected of serious misconduct. At the very least, those departments can search NLEAD to see if prospective candidates are on the list.
But while there will be some political cost to local departments who turn in the names of their former employees, reformers and like-minded community leaders can use NLEAD to pressure local departments to both check and contribute to NLEAD to keep bad cops off their payroll and, more importantly, off their streets. Activists can also cite NLEAD to encourage the repeal of state laws that shield police disciplinary records from the public. And though I expect low initial participation from non-federal agencies, the pressure and blowback will be greater when problem cops screw up in a new city.
NLEAD is not going to root out and identify all the bad cops in one fell swoop. Such miracles are very rare in public policy. But, if implemented and maintained correctly, NLEAD may reduce the number of officers who should not be on the force and encourage police departments to take better care of their good apples.