With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police misconduct, and most other remedies for misconduct, promote change by making misconduct costly for police departments and municipalities. Improving federal remedies would encourage some additional departments to seek the positive expected return on reform measures likely to reduce misconduct. But existing federal remedies all focus on either increasing the cost of misconduct or reducing its benefits. The problem is that even if existing federal remedies are altered to maximize deterrence, they cannot be employed to impose a substantially greater price for misconduct because, by their nature, the costs imposed by existing remedies are relatively fixed. As a result, federal remedies for misconduct will never prevent bad policing much more than they do now. While existing federal remedies are constrained in their capacity to deter much more than they do, there are alternative means of inspiring reform. Most notably, federal actors could foster reform by lowering the costs of adopting policies that prevent misconduct and by shoring up rewards for police chiefs and departments that pursue reform. Some Justice Department programs already likely modify the expected costs of reform, but the Department of Justice’s undertakings appear both piecemeal and limited. Although discouraging police misconduct by reducing the costs of reform and increasing its benefits poses some risks, the limits of existing federal remedies suggest these risks may be well worth taking.
Rachel Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis University Public Law Review, 33–56 (2012).