by Anitra Pavlico
Some police officers are not above bad behavior, even as they work to eradicate and punish it in civilians. It is painfully clear that some of this bad behavior amounts to murder. Civilian review boards are a tool that could punish and deter police misconduct, but they need to have the ability to carry out independent investigations, subpoena documents and witnesses, and issue binding recommendations for discipline. As of a few years ago, only five of the top 50 largest police departments in the U.S. had civilian review boards with disciplinary authority. Newark, New Jersey has recently established such a review board after decades of efforts. While many activists have lost faith in civilian review boards, ACLU director of justice Udi Ofer argues that many of these boards were “rigged to fail.” He says a weak civilian review board is arguably worse than none at all, because it “can lead to an increase in community resentment, as residents go to the board to seek redress yet end up with little.”
Ofer says review boards should have a fixed budget, not subject to politicians’ whims, and a majority of board members should be representatives of civic and community organizations. Of the top 50 police departments, 26 have no civilian review board in place at all. Of the remaining 24, all but nine are overseen by a board majority nominated and appointed either by the mayor, or by the mayor in conjunction with the head of police. This hampers the independence of the board when it comes to making disciplinary recommendations.
Police accountability expert professor Samuel Walker’s definition of a civilian review board is “an agency or procedure that involves participation by persons who are not sworn officers (citizens) in the review of citizen complaints against the police and/or other allegations of misconduct by police officers.” Ofer’s definition is a variation of this, to include an investigative component: an agency staffed with civilians, not sworn officers, charged with investigating civilian complaints of police officers’ misconduct. This disqualifies review boards that merely review results of internal police department investigations.
Further, a civilian review board with the nominal ability to investigate civilians’ complaints but without subpoena authority to request documents and testimony is seriously limited in its ability to investigate. While subpoena authority is becoming more common, and is enabled in review boards for the two largest police departments, New York and Chicago, only 19 of the civilian review boards overseeing the largest departments have it.
Meanwhile, it is one thing to investigate, but what if the civilian review board can’t discipline officers? Only six of the largest police departments’ review boards have disciplinary authority–Chicago, Washington, D.C., Detroit, Milwaukee, San Francisco, and Newark. Ofer writes that this is “the most revealing finding of this analysis and at the core of the frustrations felt by the public on the deficiencies of current oversight models.” Ofer’s model for a review board has the ability to investigate allegations of police misconduct and either discipline officers directly or recommend disciplinary measures to the police chief; these measures must be followed unless there is clear error in the review board’s decision. The Newark review board’s findings of misconduct, for example, are then applied to a pre-negotiated “disciplinary matrix” to determine the penalty for the officer. This ensures uniformity in penalties and eliminates the chance of undue leniency once the case is back in the police department’s hands.
Ofer argues that a civilian review board’s mandate should ideally include reviewing police policies and procedures, not just individual allegations of misconduct. For example, it emerged that controversial tactics such as the widespread use of stop-and-frisk, which led to a high number of complaints in New York, was a result of NYPD leadership’s expectation that each officer issue at least 20 summonses and make one arrest per month. Other areas potentially ripe for reform include racial disparities in enforcement of low-level offenses, and lengthy 911 response times in certain neighborhoods. If a civilian review board only addressed individual complaints, it would have no ability to remedy these overarching issues that have led to a deterioration in police-civilian relations in many communities. A review board that had scrutinized use of the chokehold in arrests, especially after the death of Eric Garner in New York in 2014, might have recommended that the practice be made illegal. Instead, it was only prohibited in New York last week. [1]
Former police officer and expert on police misconduct Philip Matthew Stinson notes that in most police departments, it is a relatively small number of officers who are the subject of a large number of civilian complaints. In 1981 the U.S. Commission on Civil Rights found that a very small number of police officers in Houston were repeat offenders who had generated a high number of civilian complaints. One officer was the subject of 12 citizen complaints in a two-year period, including five excessive force complaints and one following a fatal police shooting. Yet there was no indication that the pattern of misconduct was ever flagged within the Houston Police Department. After the 1991 beating of Rodney King by Los Angeles police officers, the Christopher Commission found that 10 percent of Los Angeles police officers accounted for 27.5 percent of all excessive force complaints filed in the years 1986-90, including 44 officers who were each the subjects of six or more, 16 officers who were the subjects of eight or more each, and one officer who was the subject of 16 excessive force complaints. Criminal prosecutions are rare. Moreover, prosecutors typically fail to collect adequate data, making it impossible to measure police violence in urban areas. After the King incident, federal legislation was passed requiring the Department of Justice to collect data on the use of excessive force by police officers and publish an annual summary of the data. Despite this, an “annual” summary has yet to be published. FBI director James Comey said in 2016 that “Americans actually have no idea” about police violence because the federal government never collected the data. With, on average, over 1,000 police officers arrested every year, and with around 1,000 people killed by police officers every year, there should be more aggregation and analysis of this data to see if there are ways to bring these numbers down.
Stinson notes several phenomena intrinsic to the world of law enforcement that, in my view, make it all the more necessary for police departments to exist alongside adequately empowered civilian review boards. Stinson says that most police officers eventually conclude it is an “us-versus-them” world, and he bluntly notes that, in a police officer’s worldview, “There are police officers and there are assholes. Officers think that everyone who is not a police officer is probably an asshole.” They face intense psychological pressures, and it is extremely difficult to leave the job behind when they are finished with their shift. Police officers have “incredible power” to control other people. Stinson writes that these job conditions cause many officers to conclude that they are above the law.
The backdrop to this is a criminal justice system in which over 95 percent of criminal cases end in a plea and do not go to trial. Police officers “own the narrative,” filing reports that may or may not reflect what actually happened, and are cross-examined at trial only very rarely. Even if the case does go to trial, the well-known “blue wall of silence” makes it exceedingly difficult to find an officer who will testify against another officer. “Testilying” is a known problem. Stinson applies various criminological theories to criminal behavior in police officers. The theory that appears most apt is arguably the “routine activity” theory, which holds that a crime is most likely to occur with the confluence of three conditions: a motivated offender, a target, and the absence of a guardian. This “guardian” could simply be a passerby that would prevent the offender from acting. Body cameras and the ubiquity of smartphones also act as guardians to prevent an officer from engaging in misconduct. The more guardians, the theory goes, the less likely a civilian or police officer is to commit a crime. There are internal and external guardians or controls that exist to deter crime in police officers: internal controls include police department investigations, and external ones include citizen oversight boards. A thorough, unbiased civilian review board investigation may be more of a deterrent to police misconduct than an internal investigation that may be less rigorous, and whose results may never see the light of day. [2]
Stinson notes that those most likely to lose police jobs due to misconduct are those officers with no college education, with a prior delinquency or criminal record when they were hired, who did not advance with promotions, who were assigned to busy patrol beats, and who had accumulated multiple complaints. There clearly needs to be better monitoring of problem officers. But with respect to some of the other items, there should be more stringent qualifications in the first place for hiring officers. How do you get quality people to do this dangerous job, in which they need to watch their every move and engender the goodwill of the community they are working to protect, and which will quite possibly tarnish their worldview so that everyone who is not them is seen as an asshole? Pay them more, provide counseling and ongoing on-the-job training, including sensitivity and bias training, and give them adequate time off. We need our police, but the system is broken. Without reform there will be more deaths and more protests that increase the possibility of violent confrontations between police and civilians, adding to the resentment on both sides. The protests have undeniably had an impact; in my state, Governor Andrew Cuomo signed legislation on Friday bringing about sweeping reforms. It’s a shame people have to die before bad policies and laws are changed.
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Footnotes
[1] New York’s Civilian Complaint Review Board’s recommendations in individual cases, meanwhile, do not necessarily need to be followed: “The Police Department has disregarded the review board’s recommendations in chokehold cases in the past. A 2015 report by the Inspector General for the Police Department, part of the city Department of Investigation, found that police lawyers frequently softened the review board’s recommended punishments and kept chokehold cases from going to trial, and that the police commissioner generally opted for less severe penalties.” Benjamin Mueller, “Review Board Recommends Stiffest Punishment for Officer in Garner Case,” The New York Times, Sept 8, 2017.
[2] One thorny issue is that of due-process protections under the U.S. Constitution for police officers who testify before a civilian review board. There is a U.S. Supreme Court case from 1967, Garrity v. New Jersey, which holds that if an officer appears before the board because they are told they will lose their job otherwise, the testimony is then deemed coerced or involuntary and cannot be used against the officer in an ensuing criminal trial. Similar to a Miranda warning, a supervisor may read the Garrity rights to an officer who is subject to investigation by a civilian review board, stating that while the officer’s statement may not be used against him in court, he is nonetheless subject to disciplinary action if he does not cooperate with the review board’s investigation. This Garrity protection prevents officers from pleading the Fifth before the review board. It also highlights the importance of a robust evidentiary record against an officer who has committed a crime, as his review board testimony cannot be used against him in court.
Sources
Udi Ofer, “Getting it Right: Building Effective Civilian Review Boards to Oversee Police,” Seton Hall Law Review, Vol. 46: 1033 (May 18, 2016)
Philip Matthew Stinson, Sr., Criminology Explains Police Violence, University of California Press, 2020.
The photo is of a local protest and appeared in Newsday on June 14, 2020.