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 misconduct by their officers that they can weigh the costs and benefits of maintaining the status quo. Yet, few question whether or how governments gather and analyze information about suits brought against them. Drawing on extensive documentary evidence and over two dozen interviews, this Article finds that officials rarely have probative information about suits alleging misconduct by their officers. Some departments systematically ignore information from suits. Technological kinks, employee error, and blatant efforts to sabotage combine to undermine other departments' limited efforts to gather information. It would be a mistake, however, to conclude that civil rights damages actions cannot deter government misconduct. Those law enforcement agencies with systems to gather and analyze probative data have strengthened the deterrent effect of lawsuits. Just as informational regulation has been used to improve corporate, medical, and financial behavior, more robust and effective information policies and practices can increase the impact of lawsuits on law enforcement behavior. In the meantime, however, descriptions of deterrence – and the normative implications that follow – must be recalibrated to reflect the current relationship between litigation, information, and decision-making