Ben Grunwald on Solving ”The Wandering Officer” Problem

By Ben K. Grunwald

Last month, as Derek Chauvin’s trial began for the murder of George Floyd in Minneapolis, Minnesota, Duke Law Professors James Boyle and Ben K. Grunwald discussed “The Wandering Officer” problem, the common phenomenon in which law enforcement officers get fired at one law enforcement agency to be rehired at another while continuing to engage in the same conduct that got them fired in the first place.

During this back and forth, which has been edited for length and clarity, the professors talk about Grunwald’s recent Yale Law Journal article with Professor John Rappaport from the University of Chicago on the issue and the policy proposals most likely to promote police accountability and other social reforms in the United States, but particularly in Black communities and other communities of color.

You wrote a fascinating 2020 Yale Law Journal article, with Professor John Rappaport from the University of Chicago, called The Wandering Officer. Could you describe what a wandering officer is and what the goal of the study is?

A wandering officer is a police officer who is fired by one law enforcement agency and then gets hired by another. The most famous example is Tim Loehman, who—just a few years after he shot and killed 12-year-old Tamir Rice in Cleveland—was “allowed … to resign” from his previous job in Independence, Ohio, after experiencing a “dangerous loss of composure” during firearms training.

This phenomenon of wandering officers goes by many names, but, whatever you call it, the basic story people tell about it is the same: fired officers have little trouble landing a new job in law enforcement; when they do, they tend to move to smaller agencies, with fewer resources; and, when they get there, they continue to engage in the same conduct that got them fired in the first place. If you ask policing experts, they disagree about the scope of the problem. Some say wandering officers are common, while others say they’re vanishingly rare.

Until recently, it’s been hard to study this phenomenon because you need data on many officers, spread across many agencies, in a large geographic area, over a large span of time. And, given the decentralized nature of American policing—the fact that there are about 18,000 law enforcement agencies and almost none of them share the same boss—researchers haven’t had access to the necessary data. To address this problem, we introduced a dataset that contains information on every law enforcement officer hired in the state of Florida over the last thirty years and used it to measure and describe how and when officers move from one agency to the next.

What do you find?

We have three principal findings. First, we measure the number of wandering officers employed in Florida. In the last thirty years, we find that there was an average of about 1,100 full-time law enforcement officers working at any given time who had previously been fired at some point earlier in their career. That represents about 3% of all officers during that period. Though, that number has decreased recently. As of 2016, just over 2% of all officers were wanderers. It’s tricky to identify all wandering officers because some, who see the writing on the wall, may quit before they’re officially fired. Fortunately, our data track whether an officer left a job while being investigated for misconduct, which means we capture some of those cases. But we can’t capture all of them, and for that reason, we suspect our estimate of the number of wandering officers in Florida represents a lower bound.

Second, we examine how fired officers land another job in law enforcement. Among officers who were fired from their last job, about 17% later obtain full-time employment in a Florida agency. As a rough comparison point, about 39% of officers who have never been fired and voluntarily quit obtain another job in law enforcement.

Third, we describe the agencies that hire wandering officers. We find that, compared to officers who have never been fired and who leave their jobs voluntarily, wandering officers who land another job in law enforcement tend to move to agencies that are much smaller, with fewer resources, serving communities with slightly more Black and Hispanic residents. We expected that wandering officers would need to move further geographically to find work, to escape their tarnished professional reputation. But that’s not what we found. Instead, on average, both wandering and non-wandering officers tend to move to agencies that are about the same distance from their last employer.

Finally, we examine how wandering officers behave at their new agencies. We find that officers who were fired from their last job and land another one are about twice as likely to be fired within three years as both rookies and non-rookies who secured a new position. We find similar results for complaints alleging “moral character violations” for integrity-related misconduct and violent or sexual misconduct.

You close the article with a series of policy proposals.  Can you explain them, please, and also tell us which ones you are most excited about in terms of political impact and which ones you think are most politically feasible?

Crafting a narrowly tailored policy solution for wandering officers is tough because we still don’t know why agencies hire them. There are a few options. One possibility is that hiring agencies lack information—they just don’t know about their applicants’ problematic work history. In that case, the best solution is to strengthen background checks and develop centralized state-level databases that track basic information about employment, firings, and, even better, misconduct more generally. Most states already track data about officers who are decertified, that is, those who lose their licenses to work as law enforcement officers. But it’s hard to decertify officers, and it rarely happens. So, those databases capture only the tip of the iceberg of police misconduct. States need to collect and make available more and better data. Of course, this isn’t just a state-level problem. Some officers may be fired and then land a new job across state lines. If the problem is a lack of information, the solution to interstate wandering is a national database. But, like most state databases, the existing national database tracks only decertification—not firings or other forms of misconduct.

Alternatively, agencies may know they’re hiring wandering officers but lack better alternatives. That explanation is especially important for agencies that have fewer resources or are located in less desirable areas. Those agencies may struggle to offer competitive compensation to attract good candidates. In that case, the best solution is to hire fewer officers—consistent with the defund movement—or improve the pool of candidates by raising salaries or benefits.

Finally, agencies might discount the societal costs of hiring wandering officers because they are heavily insulated from legal liability. Even in the rare case where an agency is forced to compensate a civilian harmed by a wandering officer, the money often doesn’t come out of its operational budget. The ideal solution would be to change the legal liability regime and local budgetary system.

Of these three policy proposals, the first is the most politically feasible. In fact, over the last year, a number of states have taken steps to better track wandering officers and, in some cases, police misconduct more generally. While that’s certainly an improvement, it’s also worth keeping in mind that wandering officers are only one of many complex problems in American policing. Most officers who engage in misconduct—who, for example, use excessive force or engage in racial discrimination—are never fired and therefore aren’t wandering officers. Addressing the legal liability regime would go much further to improve policing. But activists and scholars have been pushing for that kind of reform for decades without much progress.

Finally, for our readers, what are some of the most promising reforms that society should put significant effort into testing?

For decades, we’ve used the criminal justice system as our go-to tool for addressing major social problems without much evidence about effectiveness and without attending to the massive social costs, particularly for Black communities and other communities of color. That was a mistake. One overarching policy strategy going forward is just to do less criminal justice. As many have argued before, law enforcement agencies do too much; they shouldn’t be responsible for addressing issues like homelessness, mental health, drug dependency, and other related social problems. Consistent with the defund movement, I’d love to see many localities downscale police departments and reallocate some of their tasks to other government agencies better suited and better trained. As far as I know, we don’t have any systematic empirical studies of this kind of program yet.

The same principle of doing less applies to courts, jails, and prisons, too. We’ve long suspected that, at least for some people, exposure to the criminal justice system does more harm than good. And there’s a growing literature studying low-level offenses that confirms that intuition. One prominent recent study, for example, finds that diverting low-level felony defendants from criminal court cuts reoffending in half and increases employment by 50%. Another working paper, just released last month, finds substantial reductions in reoffending from diversion, too.

As many people know, the United States incarcerates a larger proportion of its residents than any other similar country in the world. That comes with huge social costs that disproportionately burden Black residents and other historically marginalized social groups. In fact, a fascinating new empirical paper argues that those costs cannot be justified by the benefits for almost every person detained in jail pretrial. To make matters even worse, there’s pretty good evidence that a substantial proportion of our incarceration rate gives little benefit in terms of reducing crime. There’s already some public support for decarcerating lower-level offenses. But to bring our incarceration rates anywhere close to that of other comparable countries, we need to start shortening sentences or reducing prison admissions for violent offenses, too.

Finally, I don’t just mean that we should do less criminal justice; I mean that we should also do more non-criminal justice. It comes as a surprise to some people that we have relatively few rigorous studies testing how to reduce crime without relying on the criminal justice system. But there’s a growing body of empirical evidence that has taken off in the last few years. While it’s too early to say with confidence whether each of these strategies is effective—causal inference is incredibly hard in this context—there’s promising evidence that many investments in local communities and infrastructure reduce violent crime, including drug treatment centers, mental healthcare, medical healthcare, cognitive behavioral therapy, early childhood education, lead mitigation, emergency cash payments to families to mitigate financial shocks, greening vacant lots, enhanced street lighting, and local non-profit programs focused on reducing violence.

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