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Sen. Kamala Harris spoke at a rally in Oakland, California in January.
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Can Kamala Harris Adapt The Government’s Airplane-Safety Model to Stem Police Shootings?

The transportation safety board works with federally-regulated air travel. A policing board would deal with thousands of local police departments.

Kamala Harris’s criminal justice plan released Monday included at least one concept that is utterly novel among Democratic primary candidates: applying to police shootings the successful government model now used to improve airline safety.

Harris proposed founding a National Police Systems Review Board, which would “collect data and review police shootings and other cases of severe misconduct, and work to issue recommendations and implement safety standards based on evidence revealed in these reviews.” Harris cites the National Transportation Safety Board (NTSB), the independent entity that investigates airline crashes, as a model for the type of impact such an agency could have on police conduct. The NTSB, Harris’ plan notes, has “played a role in greatly reducing airplane crashes by recommending and implementing industry standards and regulations.”

Harris released few details of the proposal, saying only that if she became president she would work with Congress to create the Police Systems Review Board with the goal of assisting the nation’s roughly 18,000 police departments in improving and implementing safety standards and regulations for officers’ conduct.

Such a model has greatly improved airplane safety. Recommendations made by the NTSB and adopted by manufacturers and operators are widely credited with a dramatic multi-decade decline in aviation accidents in the U.S. The agency has also recorded the government’s official “census” data on all airline accidents since 1962.

U.S. law enforcement kills roughly 1,000 people every year, a fact that came into stark relief after the killing of Mike Brown in Ferguson in 2014 led to widespread protest and the emergence of Black Lives Matter. Under Attorney General Eric Holder, and later Loretta Lynch, the Department of Justice began making greater use of its power to investigate individual use of force incidents and the patterns and practices of police departments, but that came to a halt after Donald Trump’s election. All the Democratic candidates have pledged to reinvigorate federal oversight to some degree or another, but the review board component of Harris’ plan is unique.

In an email, Cambridge criminologist Lawrence Sherman described Harris’ idea as “the only serious national policy proposal on the table” that both stands a chance of adoption and could have a substantial impact.

He continued: “A National Police Systems Review Board could save more lives than the NTSB, simply because police kill over 1,000 people per year annually, while commercial airlines have avoided any deaths for several years now—despite the many more people airlines put at risk in high elevations.”

In a 2018 study published in the Annual Review of Criminology, Sherman took the police shooting–plane crash analogy a step further, suggesting that criminologists start thinking of shootings as “system crashes,” which he defined as a catastrophic event stemming from a wide range of systemic causes.

According to Sherman, that framing “helps to insulate the search for solutions from being consumed entirely by the urge to identify enemies.” In his view, the more productive and effective way to respond to catastrophic events is focusing on where the system broke down—as the NTSB does—rather than principally on who to blame and ultimately punish. In the case of police shootings, that’s mostly seen in the desire to see officers arrested, charged and convicted of crimes. No one is arguing that officers should not be held individually accountable for negligent or malicious actions. Instead, experts believe a systems-based approach is more effective at actually preventing killings than the deterrent effect of officers facing possible punishment.

In the study, Sherman says that is up to researchers and police leadership “to design the kind of recruitment, training, promotions, supervision, dispatching, tracking, decision making, and organizational culture that can make shooting an unarmed man...unthinkable.”

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Of course, thinking systemically about catastrophic incidents does not necessarily require founding a new agency. Laurie Robinson, a criminologist at George Mason University, sees a number of technical hurdles in setting up such an agency for police shootings, with the authority and scale necessary to do what Harris is proposing.

Robinson, who was the co-chair of the Obama administration’s Task Force on 21st Century Policing, called the proposal “well-intentioned, but unrealistic.” She noted, as Harris herself does repeatedly in her plan, that founding a new agency with investigative authority over thousands of police agencies in the country would be a lot more complicated than it was in the far less diffuse, and less politicized, realm of air travel.

“It would be unusual, as opposed to NTSB's power over a regulated interstate business, to provide this kind of power over a very local function,” Robinson said of policing. “I think it's important to propose initiatives that are realistic in what they can deliver in important areas.”

A police systems review board modeled on the NTSB wouldn’t have the power to enforce any regulations with fines or lawsuits but would have to be granted a substantial amount of power to conduct investigations by Congress. By statute, an NTSB investigation “has priority over any other by another department, agency, or instrumentality of the US government.”

Even if the language were different, multiple experts said a police board would need to be granted substantial investigative authority to have any chance of being effective. Granting a federal agency that kind of power over thousands of use of force incidents could be a heavy lift in Congress, and could set up messy territorial disputes with jurisdictions—even reform-minded ones like California—that have established their own protocols.

Probably the closest analog for a police systems review board would be the existence of civilian review boards, which have been around for decades in various cities, and are often a cornerstone of local packages for progressive reform. The comparison is imperfect since a federal agency wouldn’t face the same independence or funding problems that local boards are often subject to. But those differences notwithstanding, the federal agency would be nearly certain to draw the ire of police union leadership, who have historically been extremely hostile to external oversight agencies.

Robinson said she favored other accountability measures featured in the plan, like the proposal to have the Department of Justice “incentivize state agencies to conduct their own independent investigations of officer-involved shootings,” and increasing resources for the Department of Justice Civil Rights Division to conduct the kind of investigations that took place after Brown was killed in Ferguson in 2014, which lead to two DOJ reports and a federal consent decree.

One clear advantage for reformers of an independent agency would be its durability across administrations. Unlike the DOJ, which is subject to wild swings in priority, staffing and funding levels could continue through successive presidential elections. The five members of the transit safety board are required to be bipartisan by law, since only three of the members may be from any one party at any given time. It’s not clear whether the board Harris proposed would be bipartisan.

Paradoxically, it’s likely that if Harris got into the White House in 2021, she’d need a massive blue wave to roll into Congress with her to get anything like a police systems review board in place. “One of the things that's interesting about policing, specifically, is that the policing reforms don't seem to enjoy the broad bipartisan support of other aspects of criminal justice reform,” said Inimai Chettiar, legal director for the Justice Action Network. “I am curious about how this would play out with a divided Congress, because this is still, ultimately asking it for regulations on law enforcement.”

Harris will have opportunity to raise her criminal justice proposals, and perhaps be pressed on them by her opponents, at the next installment of the Democratic debates this Thursday, Sept 12.