By Katharine Neill Harris, Ph.D.
Alfred C. Glassell, III, Fellow in Drug Policy
In the last five years, the proliferation of videos capturing law enforcement officers shooting unarmed civilians, especially men of color, has mobilized public demand for greater police accountability. No tool has been considered more critical to holding law enforcement accountable than the body-worn camera (BWC). Many departments have responded accordingly. The Bureau of Justice Statistics reports that 60 percent of local police departments and 49 percent of sheriffs’ offices had fully implemented BWCs by 2016, although policies surrounding their use vary considerably across departments and smaller jurisdictions are less likely to adopt them.
From the public’s perspective, BWCs are intended to limit undesirable forms of discretion, to monitor and moderate the tendencies of officers who are overly aggressive or undertrained. From a department’s perspective, the cameras can also be used to strengthen disciplinary mechanisms and shift liability for misconduct away from departments and onto individual officers. In the Houston Police Department, for instance, body camera footage is subject to random audits. Violations of department policy that were previously undetected, such as not wearing a seatbelt, can now be grounds for disciplinary action. The cameras also enable superior officers to evaluate judgement calls made by patrol officers on scene, and if an officer is determined to have acted inappropriately, s/he can be punished. In cases of excessive use of force, this additional oversight is welcomed by the public. But to the extent that the camera’s surveillance is used to censure officers for not taking action, it may also have the effect of encouraging officers to make self-protecting arrests that they could have let slide — an outcome likely to be viewed less favorably by communities that feel over-policed.
Drug possession cases, which compared to most other types of cases are less likely to have a victim and more likely to have hard evidence of a law being broken, could be especially impacted by changes in officer discretion at the point of arrest. Drug possession arrests also disproportionately impact the same communities of color that have advocated most strongly for body cameras as a mechanism to address over policing in their neighborhoods. Any increase in such arrests then, even a small one, would run counter to the objectives of these communities, making the question of whether there is a relationship between BWCs and drug arrests an important one.
Like all areas of body camera research, the few studies that exist present conflicting evidence regarding whether camera-wearing officers make more arrests than officers without cameras. No studies of which I am aware look specifically at the relationship between body cameras and likelihood of making a drug arrest. In my own conversations with officers, they have expressed that their awareness of the cameras and their knowledge that the footage could be reviewed by superior officers can make them feel pressured to take official action on calls that previously they would have handled through informal channels.
This pressure can be good under certain circumstances; for example, the camera’s presence might make some officers more likely to treat domestic violence calls seriously and make an arrest or take other proactive measures. But in other instances, such as drug possession cases, limits on officer discretion may result in arrests that the public finds undesirable and which do little to improve public safety. Officers have told me that BWCs make drug arrests more likely if the evidence is caught on camera. One officer explained that, “you make a traffic stop, and maybe someone has some crack on them that you see in the car but they aren’t under the influence. Maybe you let that person go. But now, if the crack is seen on the body cam, then you have to make that arrest because you could be disciplined or even lose your job if you don’t.” Emptying a bag of drugs on the street and sending a citizen on his way has never been an officially sanctioned police policy, but plenty of officers have done this or know officers who have. With the cameras rolling, this is no longer an option.
To ensure that BWC-equipped officers don’t feel like they have to make a drug arrest to avoid disciplinary action, a relatively simple fix would be to state explicitly in departmental policy that officers have the discretion to decline arrests in low-level drug possession cases, as they already have for some low-level misdemeanors. Police departments might object to this proposal on the grounds that without the arrest there is no way to ensure proper disposal of the drugs. Logistic concerns about how to handle the drugs are important—departments need some mechanism to make sure officers don’t take drugs home or use them as evidence to plant in future stops, for example—but these are not insurmountable obstacles. One possibility would be to install secure receptacles for disposal at police stations.
Jurisdictions across the US, tired of waiting for state legislatures to make necessary drug law reforms, are already expanding officer discretion on drug cases through programs like law enforcement assisted diversion (LEAD), which gives officers the option of diverting individuals found with drugs away from jail and to community resources. LEAD is a proactive effort to reduce the incarceration of drug offenders and connect them with other forms of assistance. While it is adaptable to localities of different size and capacity, not all police departments are ready to embrace this model (although I would argue, and have, that they should).
But departments could still make declining to arrest in low-level drug possession cases an officially acceptable action without creating an entire diversion program. This would not result in a drastic decrease in drug arrests, and it wouldn’t do much to connect people with treatment or other services, but at least it would provide some professional cover for officers who prefer not to arrest people for drug possession.
Critics of law enforcement may question whether it is necessary or desirable to protect any forms of officer discretion. For some obvious reasons, there are far more media stories documenting instances of police planting drugs on people than there are of officers not making a drug arrest. Recent high profile cases, like the former Florida officer caught on his body camera planting methamphetamine on citizens during traffic stops, highlight the persistent problem of police misconduct and the limits of BWCs to curtail such behavior, as well as their role in catching it. The research on body cameras to date leaves many questions unanswered about how BWCs impact officer discretion as well as a host of other issues, including use of force, police-community relations, and citizen and victim privacy. Two things seem certain: BWCs are becoming a permanent fixture of modern policing, and their effects are likely to be much more nuanced than originally predicted. More research is needed to understand how BWCs impact officer discretion, and police departments need to use this research to inform policy so that undesirable forms of discretion are limited without stifling officer actions that are in line with the goals and concerns of the communities they serve.