MYTHS AND MECHANICS OF DETERRENCE: THE ROLE OF LAWSUITS IN LAW ENFORCEMENT DECISIONMAKING

Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging police officer misconduct that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true. Drawing on extensive documentary evidence and interviews, this Article finds that officials rarely have much useful information about suits alleging officer misconduct. Some departments intentionally ignore information from suits. Technological kinks, employee error, and deliberate efforts to sabotage data collection combine to undermine other departments' limited efforts to gather information. Yet those law enforcement agencies with functioning systems to gather and analyze data about lawsuits have used that information to reduce the likelihood of misconduct. Just as informational regulation has been used to improve corporate, medical, and financial behavior, more robust and effective information policies and practices may improve law enforcement behavior. Until these policies and practices become commonplace, however, descriptions of deterrence and the prescriptions that follow must be recalibrated to reflect the current relationship between litigation, information, and decisionmaking.