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The Problem of Clearance Rates and Criminal Accountability SJ Quinney College of Law, University of Utah Utah Law Digital Commons Utah Law Faculty Scholarship Utah Law Scholarship 4-2020 How Effective Are Police? The Problem of Clearance Rates and Criminal Accountability Shima Baughman S.J. Quinney College of Law, University of Utah, [email protected] Follow this and additional works at: https://dc.law.utah.edu/scholarship Part of the Criminal Law Commons Recommended Citation Baughman, Shima, "How Effective Are Police? The Problem of Clearance Rates and Criminal Accountability" (2020). Utah Law Faculty Scholarship. 213. https://dc.law.utah.edu/scholarship/213 This Article is brought to you for free and open access by the Utah Law Scholarship at Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Faculty Scholarship by an authorized administrator of Utah Law Digital Commons. For more information, please contact [email protected]. HOW EFFECTIVE ARE POLICE? THE PROBLEM OF CLEARANCE RATES AND CRIMINAL ACCOUNTABILITY Shima BaradaranBaughman INTRODUCTION .......................................................................................................... 48 I. How TO MEASURE POLICE EFFECTIVENESS..............................................55 A. Dening ClearanceRates.............................................................................56 B. The Problems of Clearance Rates ............................................................. 59 C. "CriminalAccountabiky": Police Effectiveness at Solving Crime...............65 1. Know n Crim es......................................................................................66 2. Conviction R ates...................................................................................69 3. Imprisonment Rates..............................................................................70 4. Crime Resolution Rates........................................................................71 II. MEASURING CRIMINAL ACCOUNTABILITY .............................................. 73 A. Reported and Known Crimes........................................................................74 B. True CriminalAccountabikty Rates ............................................................ 83 1. StandardArrest Rates ......................................................................... 85 2. True Arrest Rates........................................................................... 86 3. Standard Clearance Rate.................................................................. 88 4. True Clearance Rates ........................................................................... 90 5. StandardConviction Rates...................................................................92 6. True Conviction Rates.................................................................... 93 7. CriminalAccountability ....................................................................... 95 III. THE PATH FORWARD FOR CRIMINAL ACCOUNTABILITY ......................... 99 A. The Neglect of Crime Accountability...................................................... 99 B. Thoughts and Counterthoughts on Poice Effectiveness ................................ 104 CONCLUSION ............................................................................................................. 111 APPENDIX .................................................................................................................. 113 47 48 ALABAMA LAW REVIEW [Vol. 72:1:47 HOW EFFECTIVE ARE POLICE? THE PROBLEM OF CLEARANCE RATES AND CRIMINAL ACCOUNTABILITY Shima Baradaran Baughman* In recent years, the national conversation in criminaljustice has centered on police. Are police using excessive foree? Should they be monitored more closely? Do technology and artificial intelligence improve policing? The implied core question across these national debates is whether police are effective at their jobs. Yet we have not explored how effective police are or determined how best to measure police effectiveness. This Article endeavors to measure how effectively police peform at their core function-solving crime. The metric most commonly used to measurepolice effectiveness at crime-solving is a "clearance rate:" the proportion of reportedcrimesfor which police armst aperson and refer them forprosecution. But clearance rates are inadequate for many reasons, including the fact that thy are highy manpulable. This Article therefore provides a set of new metrics that have never been used systematically to study police effectiveness-referred to as "criminalaccountability" metrics. Criminal accountability examines thefull course of a crime to determine whetherpolice detect and ultimatey resolve committed crime. Taking into account the prevalence and the number of crimespolice solve, the proportion of crimes solved in America is dramatically lower than we realize. Only with a clearer conversation, rooted in accurate data about the effectiveness oftheAmericanpolice system, can we attempt apath toward increased criminal accountability and public safety. INTRODUCTION We are accustomed to believing that people get caught for committing crimes.1 If you commit murder and leave DNA behind, you are certain to get * Associate Dean of Faculty Research and Development, Professor of Law and Presidential Scholar, University of Utah S.J. Quinney College of Law. Special thanks to Ryan Baughman, Sandra Mayson, Paul Robinson, Barry Friedman, Elizabeth Joh, L. Song Richardson, Benjamin Levin, Seth Stoughton, Jenny Carroll, Paul Cassell, Chris Slobogin, Ronald Allen, Paul Gowder, Sheila Bedi, Daniel Epps, Andrew Ferguson, Carissa Hessick, Cathy Hwang, David Ball, Chad Flanders, Lauryn Gouldin, Bennett Capers,Jenia Turner, Cecilia Klingele, John Rappaport, Justin Murray, Eve Primus, Julian Clarke, Florence Finkle,Jennifer Laurin, Eric Miller, RonNell Anderson Jones, Christopher Griffin, and Anna Roberts for invaluable assistance and contributions to this piece. Special thanks to the contributors at CrimFest 2018 who provided helpful comments, the NACOLE Policing Conference at University of Texas, and University of Arizona Law School and Northwestern University Law School for hosting me and providing excellent feedback on this research. I am indebted to Melissa Bernstein, Valerie Craigle, Alicia Brillon, Ross McPhail, Eli LeCates, Olivia Ortiz,Joshua Loader, Zachary Scott,Jacqueine Rosen, and Haden Gobel for research support, and especially to Jessica Morrill, for data gathering and empirical work. I am also grateful to Mindy Kidd and the editors at the Alabama Law Review for their excellent editing on this piece. 1. The exception to this belief is the Blackstone principle, which underlies a recognition that some guilty defendants will indeed go free. See 4 WIILAM BLACKSTONE, COMMENTARIES 352. For an excellent argument that we should stop reciting Blackstone as a "mantra," see Daniel Epps, The Consequences ofErmrin Criminaljustice, 128 HARV. L. REV. 1065, 1072 (2015). 2020]How Effective Are Police? The Problem of ClearanceRates and CriminalAccountability 49 caught.2 If you leave your fingerprints anywhere or are detected by a camera during a burglary, the police will come knocking at your door. 3 If you push your husband off a cliff to be with your lover, the detectives will eventually figure it out.4 We assume or expect that police generally solve crimes, and the unsolved mystery is the exception. People express outrage when prosecutors are unable to convict an individual whom the public believes is guilty.5 People are appalled when justice is not served or when the public determines that an individual who has harmed someone is not held accountable for those crimes.6 Society 2. Seegenerally Natalie Ram, Genetic Privacy After Carpenter, 105 VA. L. REv. 1357, 1408 (2019) (noting that genealogy websites 23andMe and Ancestr will share genetic information with law enforcement when "compelled by valid legal process[es]" or when required to "comply with a valid subpoena or a court-ordered request"). 3. Seegeneral/y Patrick Sawer, Poice Use Glo Prints to Catch Criminals,THE TELEGRAPH (Dec. 13, 2008), https://www.telegraph.co.uk/news/uknews/law-and-order/3740688/Police-use-glove-prints-to-catch- criminals.html (noting that, in addition to using fingerprints as a means for catching criminals, forensic officers are beginning to compile thousands of prints from gloves, "allowing [officers] to match a set of prints from one crime to those found at the scene of another"). See also Clive Thompson, The Myth of Fingerprints, SMITHSONIAN MAG., (Apr. 2019), https://www.smithsonianmag.com/science-nature/myth-fingerprints- 180971640 (recognizing the increased use of DNA evidence in investigating crimes). Even small and local police stations are utilizing DNA to "solve ho-hum burglaries." Id. Police send swabs to crime labs, where the DNA swabs are run through a "'rapid DNA' machine," and minutes later, a match to the DNA is produced. Id Seegeneraly Andrew Guthrie Ferguson, PredictiePolicing Theory, in THE CAMBRIDGE HANDBOOK OF POLICING IN THE U.S. 491, 491 (Tamara Rice Lave & Eric J. Miller eds., 2019) (discussing "how police can choose between prioritizing additional police presence, targeting environmental vulnerabilities, and/or establishing a community problem-solving approach as a different means of achieving crime reduction"). But see Todd S. Purdum, Burglars:A Long Shot to Arrest, N.Y. TIMES (Aug. 17, 1986), https://www.nytimes.com/ 1986/08/17/nyregion/burglars-fingerprints-a-long-shot-to-arrest.html (reporting that one
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