Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hi, folks, and welcome to another installment of Proof Over Precedent. My name is Joe Lieberman. I'm a rising 3L at Harvard Law School, and I'm joined today by a strong MA And Strong is going to be talking to us about a very interesting topic, Law Enforcement Officer Bill of Rights. Strong, you want to introduce yourself?
[00:00:59] Speaker C: Of course. Yes. Hello everybody, my name is Strong. I am also a rising 3L at Harvard Law School. As part of Professor Greiner's Access of Justice Lab, we'd like to write some blog posts and do podcasts about interesting issues in access to justice and empirical studies of the law. And so the issue I chose was the Law Enforcement Officer Bill of Rights, which, which is in short, a model sort of statute. Sometimes it's inserted into police union contracts of various procedural and substantive rights that police officers have in the face of investigations for misconduct.
[00:01:37] Speaker B: Got it. So this seems like a very pertinent topic, especially given conversations over about police reform over the last several years.
Could you tell us how widespread these Law enforcement Officer Bill of Rights are and then maybe more specifically some of the things that they do?
[00:01:57] Speaker C: For sure, yes. So the Law Enforcement Officer Bill of Rights was first passed as a sort of landmark law in Maryland around the early 70s.
And in it it had a sort of laundry list of protections that police officers had in the course of their work. And soon these police protections really that were directly modeled after the Maryland statute spread across a lot of the country. Like I said, sometimes it was through state legislation. Sometimes these conditions were inserted into police union contracts during bargaining efforts. And so lots and lots of states now have these types of law enforcement officer bill of rights laws. Sometimes they differ on minor points, but the general structure of it is quite extensive. From one source I researched, it said that 19 states currently have some form of law enforcement Officer Bill of Rights, or leober, as some people shorten it to. And so the leober has been a very pertinent issue, especially just a few years ago, with a lot of public scrutiny and attention on police brutality, especially against communities of color. Right. And so people began questioning whether these enhanced protections for police officers were impeding access to justice in some way. And going to your second point about what these protections actually are, they covered a gamet, really. And so because access to justice is really focused on procedure, I honed in on the procedural protections officers have during investigations. And so these can go from a minimum notice period that officers must be warned within a certain amount of days before they are interrogated or that they are going to face an internal interrogation. And they must be provided with evidence that the interrogators are going to be using beforehand that during an interrogation these officers must have the right to counsel or utter representation present.
And the interrogations can't be longer than a certain length, can't be outside of a certain time of day that is uncomfortable for the officers. And they can't have more than one or two interrogators depending on the jurisdiction. Right, right. Some other broader parts of the OBER are a formal waiting period before even the commencement of a misconduct investigation. So that any sort of investigatory panel or entity has to wait sometimes quite a long amount of time before you even initiate such investigations. And that these investigators have to be fellow sworn officers and not like a civilian oversight board, that the civilian oversight board has to be a little bit more removed from investigatory authority than one would think.
So those are the procedural aspects of the Leo Bird that I found really interesting and found would seem to implicate concerns of access to justice for the public.
[00:04:49] Speaker B: Yeah, absolutely. So one more just clarifying question before we get into the meat of the access to justice issues and the studies that you talk about at the end of the.
[00:04:59] Speaker C: When you.
[00:04:59] Speaker B: When you talk about these investigations where the Leobers offer these additional protections, are you just talking about things like internal investigations or civilian oversight investigations, or do these additional procedural protections also apply if an officer is, for example, sued for police brutality through the civil legal system or even charged with a crime through the criminal legal system?
[00:05:29] Speaker C: Yeah, that's a great question. I mostly focused on the internal investigation aspect of it, the central focus of the ober. It's. It really is about internal investigations and limiting the impact of those, from my read of it.
[00:05:42] Speaker B: Thank you. Yeah, that's really interesting. All right, let's dig into the access to justice implications here because it seems like there might be some interesting competing interests to tease out. So can you walk us through what you view as the core of the access to justice considerations here and just give us a little of your thoughts on that?
[00:05:59] Speaker C: For sure.
[00:06:00] Speaker A: Yeah.
[00:06:00] Speaker C: So the central, really, question that implicates access to justice is first, as a foundational issue, the conversation is usually about a public citizen's ability to access the justice system if they have a proceeding against them. The classic example is a civil right to counsel. Right. And so fitting this aspect of police accountability into this conversation is, I think, is very interesting.
I think there is a lot of weight to the fact that you should have in the access of justice conversation, the public's ability to hold police officers to account. Right. That the public can't have access to justice unless they have some way to hold law enforcement officials accountable for alleged misconduct. And when you have procedural protections that are given to a select group of people and not to the public, that's when you start raising an eyebrow. And so central criticism of Leo ber really is that it gives police officers preferential procedural treatment as compared to civilians.
[00:07:01] Speaker B: Right.
[00:07:01] Speaker C: If you think about as a civilian, if you're investigated for misconduct at work, you don't have a lot of these rights that these. The statutes give. Your workplace can call you in for an interview or quote, unquote, interrogation. And you won't necessarily have a right to counsel.
You won't necessarily be notified beforehand. You won't have time to prepare evidence or prepare a statement. Right.
And I think it's heightened because of the national conversation about police brutality. And when you have these procedural protections for officers that place a lot of barriers to getting internal investigations done, we really start seeing perceived fairness of it go a lot down. On the other side of things, the police officers associations, fraternal orders, they all believe that these leobirds are necessary to their work. Right. That because police officers have to interact with the public in a very unique way, in a very precarious way, that they have a heightened risk of being faced with false accusations, having witch hunts started against them, et cetera, et cetera. And so they deserve and actually need heightened procedural requirements to perform their jobs effectively and not be chilled from being as good of law enforcement officers as they can be. And so it really is this competing set of values about what, in some ways, what the right place for police officers is and where they sit in society. But also how much do they need procedural protections and what is their impact on justice outcomes?
[00:08:40] Speaker B: So that brings me to my next question, which I guess to put it simply, is who's right? And to elaborate a little bit more, what are the outcomes that we actually see from these layovers? And then are the police unions or police officers concerns that ostensibly motivate These laws or these contracts, are they rooted in reality? Do you actually see like false reporting and other things?
[00:09:08] Speaker C: Yeah, yeah, I think that's a central question. Right. And it requires quite a bit of research. And there has been research done on Leobers and their impact and their efficacy, but not a ton. Right. So my blog post goes over a few of them. Most of that I actually even found can be contained in one blog post, which kind of says something about the state of the research of this.
Sometimes police officers, like the investigatory bodies themselves, have small scale studies about how the obers impact their own work. Right. So one example I found was the LA County Sheriff's Office. And they performed like a review of how procedural protections affected the course of their misconduct investigations in the LA County Sheriff's Department.
And so things I found interesting are that the review found that not all police officers subject to investigation even took advantage of of the leober right to have a counsel present during their interrogation. And when you have people who don't take advantage of that, it's interesting to see how they're treated compared to people who do. And as a qualitative matter, the sheriff's office found that there was no evidence that investigators were trying to take advantage of police officers without counsel there versus other set of police officers who did have counsel there. The real difference was that for the police officers that did have counsel during proceedings, the investigations took quite a lot longer, sometimes up to nine month delays in concluding the investigation.
And that the investigation officials saw that with counsel there, there was an avenue to share information across the department, basically sharing information about the investigation before officers could actually include it, which might taint the investigation itself. Right. You might have a witness knowing about it before being called in, and it might change narratives and all of that. So that was the sort of qualitative study, very small scale, done in one sheriff's office about the effect of the obra.
[00:11:04] Speaker B: All right, so we've got this qualitative study, like you said, that just comes out of one sheriff's office. Has there been any broader attempts to look at these effects more statistically in the aggregate, or if that's missing, where do you see the need for future research?
[00:11:24] Speaker C: For sure, yeah. So I think there's been a handful. I'd separate them out into sort of a survey methodology and also a regression analysis, essentially. But so for the survey aspect, there was a article published in the George Washington Law Review that surveyed American law enforcement leaders about the impact of the OBRA protections on interrogations, internal investigations within their departments, and what I find interesting is that these leaders who in part of them, they are responsible for discipline and misconduct in their offices, but they are also advocates for police officers. And I find it very illuminating that even these law enforcement leaders agreed, like 91% of them agreed, that leober protections led to delays in interrogation that frequently burdened their internal investigations. 83% felt that those protections that required access to evidence also frequently burdened investigations. And the sort of final kicker is that 97% believe that Leober protections did not reduce the likelihood of false confessions. Right. And so the central point of leober protections is to make sure that police officers are not pressured to confess falsely to things that they did not do in the face of ever enhancing public scrutiny. And, and so these law enforcement leaders, the vast majority of them, believe that leoba protections did not actually help with that. And so it starts getting you questioning whether these are actually effective for police officers themselves.
And then the second half of the research done on this is how does leober impact wider public outcomes? So one study tried to study sort of the link between leobers and police related civilian fatalities. And so they just basically compared data from states before and after they enacted the overprotections. So that study found actually no statistical link between the overprotections and police related fatalities. One could imagine that if police have more protections and that those protections are shielding them from actual public scrutiny or justice, that they might be more willing to do bad things. Right. Or may be willing to be more forceful to perform more misconduct, essentially. But that paper found no link, at least in terms of police related fatalities. Another paper examined differences across states from like, states who do have leober versus states who don't. And that actually did find some differences in data that states with leober protections had significantly higher prison and Carson, somewhat higher police budgets, and were overrepresented in police shootings of civilians in total and for minority civilians specifically. So it's an interesting finding that in states with more procedural protections, there's also worse outcomes for the public, it seems.
[00:14:17] Speaker B: Yeah, that's a very interesting finding, although I imagine some limitations to how much we can draw from that study.
[00:14:25] Speaker C: Yeah, for sure. So all these studies really have their own statistical limitations. When you compare before and after leober is enacted, or you compare states with leober and states without leober, you have to make sure that they're actually comparable. And there might be a lot of confounding factors. And all the papers try to do various statistical methods to control for such confounding factors. But it's never going to be guaranteed.
[00:14:49] Speaker B: Right.
[00:14:50] Speaker C: That this conclusion that we're drawing is the correct one. That's what really got me interested in proposing a randomized control study or an rct, which is the gold standard of research on actual effects of a condition. And this way you can really have comparable analysis and seeing a difference in the outcomes and being more confident in actually researching how causal the effects of behavior predictions are.
[00:15:23] Speaker B: So in an ideal world, what do you think would.
What do you think we would learn? Pry, if you could design, like the most perfect study, what would we learn? What variables would we want to maximize or minimize? And I think hopefully ties us back to the interesting conversation earlier about which access to justice values are we putting front and center here?
[00:15:46] Speaker C: Yeah, I think the first thing I would say is that if you want to design a perfect randomized control study, you definitely should not ask me. In some ways, in terms of my background, I think there are important considerations that I'd be interested in as a policy matter. I think what I'd really want to see out of a study like this is measuring both sort of on the ground, immediate effects and also effects over the long term. Right. So underground immediate effects could just be, hey, is it really true that leober protections delay investigations? And how long do you delay investigations? Right. It seems to me that a lot of people agree that they delay investigations quite a bit. But it'd be nice to have real statistical confidence in their effects on internal investigations. It'd obviously be interesting to see how often police officers invoke protections in the face of internal investigations to see how effective they are and whether they can change whether an investigation actually concludes in ultimate action, like disciplinary action, or that investigation concludes and it doesn't result in anything that it gets dropped. I think those are interesting ways to see how they shape the procedure of internal police investigations. I think zooming out outcomes I'd be interested in studying would be how they affect the rate and success at which civilians sue the police. Because you have, again, these two different tracks of internal investigations, perhaps sometimes the civilian oversight board, but also civilians suing police officers in a capacity as private citizens. Right. And they often affect each other in some way. And finally, I'd be very interested in seeing if this aspect of perceived justice or perceived fairness, even that part of exit justice, really is about having a justice system that regular citizenry believed to be fair. And when you have the leober, which gives a certain group of people more protections than civilians that are offered, there might actually be real effects on how People perceive the fairness of these internal investigations. Right. And I think you could study this by essentially surveying citizens who had given a tip or had reported police misconduct to a investigatory agency. And as it goes through the process and it ends up in ultimate action, you can ask them, surveyed him again about how, how fair did they find the process, do they think justice was served? And you can compare groups with LEOPA protections versus without LEOPA protections, the citizens themselves wouldn't necessarily know that these protections are being activated behind the scenes, but they would know the ultimate outcome. So they might be a proxy for the actual fairness and legitimacy of the internal investigation process. Right. And so there's just like a few of these things that I think would be very interesting to figure out in a randomized control study.
[00:18:30] Speaker B: Absolutely. I certainly hope that someone takes your suggestion and carries that ball forward. And I've really appreciated this conversation. Is there anything that you want to leave us with in terms of closing thoughts?
[00:18:43] Speaker C: Yeah, I think again, this issue is really just quite important, both as a matter of perceived and actual fairness legitimacy. I think it's really worth studying and taking a closer look at whether these protections are justified, whether they are effective, and how they impact the regulus industry. I think in a time where tensions between communities and the police are harder than ever, there is a really important place for measured voices in studying impacts and making policy suggestions that can be tied to quantitative reality and recognizing sort of the importance of stories and narratives as well. But having some backing to that is, I think, is very important and having more research in the space is always going to be beneficial.
[00:19:37] Speaker B: Thank you Strong very much and thanks to everyone listening along.
[00:19:43] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:20:08] Speaker D: I was kind of wondering, in your view, what does it mean for a tech tool to be accessible for people who are facing digital barriers?
So I think accessibility comes to a lot of different things.
[00:20:24] Speaker A: So.
[00:20:24] Speaker D: And there are a lot of different frameworks that you can think about it.
Like for example, when I was at the University of Chicago in Argonne National Lab, a lot of the work was focused on making machine learning data sets and models accessible to people.
And there's an acronym, it's called FAIR stands for making things findable. So, like, can you actually find the thing in the first place? Is it accessible in the sense of, like, can you actually then open that thing or use it? And then also there's the, like, accessibility in terms of, like, disability kind of perspective of like, can anybody use this thing?
Is it interoperable? Meaning, can you use it across different systems?
And is it reusable? Like, is it going to continue to be usable? And I think all of those things kind of come into accessibility.
