‘Common Law’ Examines Regulating the Police

Professor Rachel Harmon Says Reforms Should Move Beyond Individual Prosecution
Rachel Harmon

Rachel Harmon is the Class of 1957 Research Professor of Law. Photo by Dan Addison/UVA Communications

April 6, 2021

It’s time to rethink how we regulate the police, Professor Rachel Harmon says on the latest episode of “Common Law,” a podcast sponsored by the University of Virginia School of Law.

Police reforms should be more expansive than individual prosecutions of bad actors and a focus on constitutional rights, says Harmon on the season’s sixth episode. Communities should additionally consider whether policing is the solution to a given problem.

Harmon covers topics like these in her new casebook, “The Law of the Police,” the first to look at the laws that govern police conduct in the United States. The professor formerly served at the Justice Department, prosecuting cases against police officers and other officials who committed civil rights violations, including hate crimes and cases of excessive force and sexual violence.

“One of the problems with individual prosecutions is that it can make it look like the origins of police violence are largely in individual decision-making,” Harmon says on the show. “But when we look at police decision-making, so much of it is controlled by departments that criminal prosecution sometimes can distract attention from the origins of the problem or the solution.”

Harmon suggests rethinking whether certain violations of law, or suspected violations, are worth the harms caused by policing them. She pointed to Breonna Taylor’s “marginal” connection to a drug suspect. Police officers shot Taylor last year when they raided her home looking for her ex-boyfriend.

“And the question is, do we really, as a society, think that [marginal relationship] means we should go in in the middle of the night into her home, and effect a search even after it’s clear that the people inside are armed and don’t realize that they’re being policed?” Harmon asks.

During the show, Harmon discusses opportunities for the police to improve community relationships and reduce harms caused by over- or under-policing.

Harmon, director of the school’s Center for Criminal Justice, teaches in the areas of criminal law and procedure, policing and civil rights. She is a member of the American Law Institute and serves as an associate reporter for ALI’s project on Principles of the Law of Policing. She advises nonprofits and government actors on issues of policing and the law, and in the fall of 2017, served as a law enforcement expert for the “Independent Review of the 2017 Protest Events in Charlottesville, Virginia.”

Hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, the show’s third season is focusing on “Law and Equity.”

While the themes of the first two seasons were temporal — the first focused on “The Future of Law” and the second looked back at “When Law Changed the World” — this season looks across time at a variety of legal issues, asking what equity means and examining how it interacts with law.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places you can listen to podcasts. The show is produced by Emily Richardson-Lorente.

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.

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