Perhaps no issue has been more controversial in the discussion of police union responses to alleg... more Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and ...
I. The Solidarity Presumption ............................................................ 1994 I... more I. The Solidarity Presumption ............................................................ 1994 II. The Fallacy ................................................................................... 1996 A. Racial Anxiety Experienced by Blacks ............................ 1996 1. Conformity Pressure.................................................. 1997 2. Value Threat ............................................................. 2000 3. Lower Performance Ratings for Diversity-Valuing Behavior ................................................................... 2003 B. Racial Anxiety Experienced by Whites............................ 2004 Conclusion ........................................................................................ 2007
II. IMPLICIT RACIAL BIAS AND RACIAL ANXIETY..................................................75 A... more II. IMPLICIT RACIAL BIAS AND RACIAL ANXIETY..................................................75 A. Judgments of Suspicion: The Influence of Implicit Racial Bias ..................75 1. Increased Scrutiny .................................................................................76 2. Biased Evaluations of Ambiguous Behaviors .......................................76 B. Interactions: The Influence of Racial Anxiety .............................................78
In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity ... more In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s exist...
Police Use of Force L. Song Richardson * L. Song Richardson, Police Use of Force, in Academy for ... more Police Use of Force L. Song Richardson * L. Song Richardson, Police Use of Force, in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017). Racial disparities in police uses of force persist. Two competing explanations are often given for these disparities. One is that these disparities are justified because police are simply responding to objectively threatening conduct. The other is that these disparities are the result of police racism. While both accounts are accurate some of the time, this chapter illuminates how “racial anxiety” can also enable racial disparities in police uses of force even in the absence of racial animus and even when people of color are acting identically to their white counterparts. The term racial anxiety references how concerns about police racism can influence the behaviors and perceptions of officers and people of color in ways that increase the potential for violence. Consideration of racial anxiety...
Many have embraced evidence from the mind sciences that our behaviors are often influenced by our... more Many have embraced evidence from the mind sciences that our behaviors are often influenced by our implicit biases rather than our conscious beliefs. This is one reason why implicit bias has become a staple in trainings for judges, lawyers, police officers, teachers, and health care providers. While understanding that implicit bias is important, social science research demonstrates that implicit bias alone does not fully account for the racial dynamics that undermine student achievement and trigger disproportionately harsh discipline, diminish the efficacy of health care and affect morbidity and mortality rates, trigger harsher prison sentences, result in child removal, and lead to unnecessary uses of force by police against civilians. Following the “behavioral realist” approach to provide the most empirically accurate understanding of human behavior, in this Essay, we introduce “racial anxiety” as an additional lens for understanding racial disparities of all types. In the social ps...
In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography o... more In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public ...
Perhaps no issue has been more controversial in the discussion of police union responses to alleg... more Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and ...
I. The Solidarity Presumption ............................................................ 1994 I... more I. The Solidarity Presumption ............................................................ 1994 II. The Fallacy ................................................................................... 1996 A. Racial Anxiety Experienced by Blacks ............................ 1996 1. Conformity Pressure.................................................. 1997 2. Value Threat ............................................................. 2000 3. Lower Performance Ratings for Diversity-Valuing Behavior ................................................................... 2003 B. Racial Anxiety Experienced by Whites............................ 2004 Conclusion ........................................................................................ 2007
II. IMPLICIT RACIAL BIAS AND RACIAL ANXIETY..................................................75 A... more II. IMPLICIT RACIAL BIAS AND RACIAL ANXIETY..................................................75 A. Judgments of Suspicion: The Influence of Implicit Racial Bias ..................75 1. Increased Scrutiny .................................................................................76 2. Biased Evaluations of Ambiguous Behaviors .......................................76 B. Interactions: The Influence of Racial Anxiety .............................................78
In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity ... more In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s exist...
Police Use of Force L. Song Richardson * L. Song Richardson, Police Use of Force, in Academy for ... more Police Use of Force L. Song Richardson * L. Song Richardson, Police Use of Force, in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017). Racial disparities in police uses of force persist. Two competing explanations are often given for these disparities. One is that these disparities are justified because police are simply responding to objectively threatening conduct. The other is that these disparities are the result of police racism. While both accounts are accurate some of the time, this chapter illuminates how “racial anxiety” can also enable racial disparities in police uses of force even in the absence of racial animus and even when people of color are acting identically to their white counterparts. The term racial anxiety references how concerns about police racism can influence the behaviors and perceptions of officers and people of color in ways that increase the potential for violence. Consideration of racial anxiety...
Many have embraced evidence from the mind sciences that our behaviors are often influenced by our... more Many have embraced evidence from the mind sciences that our behaviors are often influenced by our implicit biases rather than our conscious beliefs. This is one reason why implicit bias has become a staple in trainings for judges, lawyers, police officers, teachers, and health care providers. While understanding that implicit bias is important, social science research demonstrates that implicit bias alone does not fully account for the racial dynamics that undermine student achievement and trigger disproportionately harsh discipline, diminish the efficacy of health care and affect morbidity and mortality rates, trigger harsher prison sentences, result in child removal, and lead to unnecessary uses of force by police against civilians. Following the “behavioral realist” approach to provide the most empirically accurate understanding of human behavior, in this Essay, we introduce “racial anxiety” as an additional lens for understanding racial disparities of all types. In the social ps...
In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography o... more In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public ...
Perhaps no issue has been more controversial in the discussion of police union responses to alleg... more Perhaps no issue has been more controversial in the discussion of police union responses to allegations of excessive force than statutory and contractual protections for officers accused of misconduct, as critics have assailed such protections and police unions defend them. For all the public controversy over police unions, there is has been relatively little legal scholarship on them. Neither the legal nor the social science literature on policing and police reform has explored the opportunities and constraints that labor law offers in thinking about organizational change. The scholarly deficit has substantial public policy consequences, as groups ranging from Black Lives Matter to the U.S. Department of Justice are proposing legal changes that will require the cooperation of police labor organizations to implement. This article fills that gap. Part I explores the structure and functioning of police departments and the evolution of police unions as a response to a hierarchical and autocratic command structure. Part II examines the ways in which and the reasons why police unions have been obstacles to reform, focusing particularly on union defense of protections for officers accused of misconduct. Part III describes and analyzes 50 years' worth of instances in which cities have implemented reforms to reduce police violence and improve police-community relations. All of them involved the cooperation of the rank and file, and many involved active cooperation with the union. Part IV proposes mild changes in the law governing police labor relations to facilitate rank and file support of the kinds of transparency, accountability, and constitutional policing practices that police reformers have been advocating for at least a generation. We propose a limited form of minority union bargaining – a reform that has been advocated in other contexts by both the political left and the political right at various points in recent history – to create an institutional structure enabling diverse representatives of police rank and file to meet and confer with police management over policing practices.
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