Duke Law Journal

Discipline and Policing

Abstract

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs. First, making PDRs public will may lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs.

The problem with individualized transparency is not theoretical. In fact, it has been much critiqued by scholars in a different but comparable realm: the wide dissemination of criminal records. PDRs and criminal records have similar problems: due process issues, inaccuracy, arbitrary and discriminatory enforcement, and permanent reputational harm. Indeed, the rhetoric used by law enforcement to defend their privacy rights sounds almost identical to the critiques that scholars make of criminal record transparency.

This Article argues that the comparison of PDRs and criminal records is instructive because it allows us to view criminal records through a new lens. As with criminal record publication, forced PDR transparency will likely not solve the problems advocates hope it will. Thus, this Article concludes that a more nuanced regime should be put in place for PDRs, and that advocates should use law enforcement rhetoric to support a more privacy-protective regime for criminal records.