Legal and Operating Strategies for Police Reform
This is the latest in our series on police reform as part of Civic Way’s overall vision for reconstructing American government. If you haven’t already, please read (Enough is Enough) and (The Brutality of Balkanization).
The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience working with governmental agencies across the US.
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- Establish, fund and empower civic oversight bodies to monitor all public safety and citizen services, not just law enforcement services
- Develop model statutes, establish a legal/policy framework that supports local reforms and offer fiscal incentives to encourage states to adopt model statutes and other reforms
- Adopt model law enforcement policies, replace obsolete tactics and employ community-driven strategies and technologies to reduce crime and improve neighborhood services
- Strengthen accountability, build a unified law enforcement database, streamline reporting, strengthen monitoring and use data to improve law enforcement
- Establish national training, licensing and certification standards, upgrade state standards, consolidate police academies and upgrade training curricula
This is the fourth position paper from Civic Way on law enforcement reform. After first presenting an approach for advancing reform, we examined the toughest challenges facing our law enforcement system. In the last paper, we presented several structural strategies for improving law enforcement. In this paper, we offer some additional ideas for addressing critical operating issues.
Police reform must proceed on two fronts, one structural and the other operational. In the last commentary, we proposed several structural ideas, including agency consolidation, a new community service model and a cultural makeover, needed to build a sound foundation for reform. In this piece, we offer ideas for constructing a new operating framework for law enforcement.
Much of the police reform debate—at least thus far—has revolved around changing certain laws affecting police (e.g., use of force and accountability laws). Unfortunately, this debate often overlooks the connectivity between policing and other public services. Our approach is to broaden the focus of such reforms to include all public services, not merely law enforcement.
Reengage the Community
For reform to be realized and sustained, it will be vital to restore public trust in law enforcement and government. This, in turn, will require well-funded and empowered civic oversight bodies charged with monitoring all citizen services, not just law enforcement services.
Every state and local government should, by law, have a formal, independent citizen oversight body. Appointed by executive and legislative officials, these bodies should possess the authority to review all citizen services and recommend improvements. Their powers should be specified in state and local law (e.g., conduct community surveys, investigate citizen complaints, issue subpoenas, hold public hearings, assess agency performance, and recommend corrective actions). Every state should offer grants and technical aid to incentivize localities to establish citizen oversight bodies.
In addition, state and local governments should adopt operating practices that will increase public interaction. Continually inform citizens of their emergency options. Expand participatory budgeting techniques to secure more public input on (and public support for) budget decisions. Conduct regular surveys to gauge public attitudes about services, including law enforcement. Incentivize employees to increase their interactions with citizens (e.g., attend neighborhood events, sponsor youth sports and provide emergency aid). Such changes will increase public faith in their governments.
Build a New Legal Framework
Legislators are right to propose changes to federal and state law, but such changes should be prudent. Overly prescriptive laws often have unintentional consequences and law enforcement reform is far too complicated to be achieved simply with new laws. The key is to establish a legal and regulatory framework that galvanizes local reforms from the ground up.
The US Congress should adopt a reform package. However, because most law enforcement is governed by state and local law, federal legislators should adopt laws and funding mechanisms that will encourage state and local governments to modernize their laws. Instead of allowing political expediency to shape such laws, Congress should proceed deliberately. It should, for instance, launch a diverse national task force to reexamine federal laws, develop model statutes and offer fiscal incentives to encourage states to adopt reforms (e.g., reduce local government reliance on traffic fines and delinquency fees).
What should a model statute look like? A well-conceived task force will no doubt draft a comprehensive model statute for guiding states, but that effort should address the following elements:
- Prohibit the removal or expunction of sensitive records (e.g., complaints and videos)
- Ensure the prompt release of all public records for critical incidents (e.g., use of force)
- Improve public access to records (e.g., prohibit excessive charges and impose fines for delays)
- Update public sector collective bargaining laws to rebalance all public employee rights and empower state and local governments to prevent and, if needed, discipline under-policing
- Encourage localities to decriminalize poverty and limit civil asset forfeitures (e.g., limit seizures to convictions, require prompt disclosures and transfer funds to the state)
- Require public employees to challenge and report the misconduct of other public employees
- Discourage excessive use of force (e.g., clarify imminent threats and eliminate fleeing felon statutes that permit officers to shoot armed, fleeing felony suspects)
- Refer suitable cases (e.g., deadly assault cases) from the local district attorney to the Attorney General’s Office or a special prosecutor appointed by the Attorney General
- Adopt uniform investigation, prosecutorial and judicial standards for all employee misconduct investigations (e.g., statute of limitations, appeal rights and reinstatement rights)
- Refine the qualified immunity doctrine to better reconcile citizen and public employee rights (e.g., standard of proof for alleged constitutional rights violations)
- Clarify and recalibrate victim rights to case severity (e.g., reduce burden of proof for excessive force victims from willful misconduct to reckless misconduct)
- Align punishments and penalties with the severity of infractions (e.g., tougher sanctions for racist conduct or excessive force)
Once the model statute is approved, Congress should provide sufficient funding to encourage states to review and adopt the model statute’s provisions. Ultimately, this will help make law enforcement laws more consistent across states and other jurisdictions.
States should then encourage local governments to follow their lead. Each state, in conjunction with relevant groups, should draft model local law enforcement codes. Such model local codes could encompass a wide variety of issues, including structure, organization, service model, records management, investigations and employee rights. In addition, they should develop model collective bargaining agreements that promote—not impede—employee accountability.
Counties and cities also should revamp their codes to decriminalize poverty. They should end their addiction to code violation fines and late payment fees, especially those levied on the poor. The legal and policy framework should encourage law enforcement officers to spend more time fighting serious crime. Ban ticket and arrest quotas. Limit fines and arrest warrants for court nonappearances. Limit driver license suspensions to suitable infractions (e.g., DUIs). Replace regressive fines with community service. Grant sufficient judicial discretion to waive fines and fees or approve payment plans.
Upgrade Operating Policies and Procedures
With the guidance of model statutes and codes, the next step should be to draft model policies. Once again, every effort should be made to secure community collaboration and relevant expertise (e.g., professional associations, private law enforcement firms and nonprofits like the NYU Law School’s Policing Project, Algorithmic Justice League and Campaign Zero). Well-crafted model policies will improve compliance with new laws, improve jurisdictional consistency and reduce costs.
The model law enforcement policies and guidelines should address the following issues:
- Protocols for high-risk situations (e.g. imminent threats and high-speed chases)
- Field tactics for non-violent situations (e.g., traffic stops, disorderly conduct, trespassing, loitering, behavioral health, homelessness and prostitution)
- Prohibited practices (e.g., chokeholds and no-knock warrants)
- Sanctions for misconduct (e.g., excessive force, intimidation and racial bias)
- Supervision, policy enforcement and compliance monitoring (e.g., body camera policies)
- Community relations (e.g., citizen outreach, officer identification and conflict resolution)
- Communications and dispatching (e.g., call routing)
- Reporting and other accountability standards
In the context of approved policies, local law enforcement agencies should have sufficient discretion to tailor their tactics to community needs. Some communities have higher crime rates—and more receptive conditions for crime—than others. Community-driven law enforcement tactics will improve policing performance and reduce crime. In this spirit, localities should eliminate or reduce their use of harsh—and ineffective—tactics (e.g., racial profiling, stop and frisk, broken windows arrests and showy paramilitary raids).
We have been hearing a lot of political chatter about law and order in recent weeks. One step we should take to achieve such order would be to empower our state and regional law enforcement entities to eliminate the plague of private militias. We should, for example, deploy special operations units (like New York City’s Emergency Service Unit) to regional entities and, as needed, to smaller jurisdictions through intergovernmental agreements. Our communities can no longer afford the unmitigated threat of private, armed militias roaming public streets.
Considerable angst has arisen about the use of law enforcement technology. As part of the effort to upgrade operating policies and procedures, local governments should collaborate to improve the use of emerging technology—and minimize its inappropriate use. With the support of appropriate associations and university programs, local governments should establish an ad hoc task force of law enforcement technology firms. Together, they should develop standards for new technology products, including ethical, privacy, racial justice and constitutional guidelines.
Improving law enforcement accountability is but one component of strengthening accountability for all public entities. While a national system for collecting and reporting law enforcement statistics is already underway, it suffers from fragmentation and other inefficiencies (e.g., voluntary reporting). More can be done to unify existing systems, streamline reporting, strengthen monitoring and use performance data to hold officers accountable and support data-based law enforcement reforms.
Under the auspices of the US Department of Justice, officials should establish a national consortium, including law enforcement associations, academic experts, community advocates and nonprofits like Mapping Police Violence, to design a comprehensive national law enforcement tracking and reporting system. That system should use existing national law enforcement data systems, like the FBI’s Uniform Crime Reporting Program and the Bureau of Justice Statistics’ annual surveys, as a foundation.
Congress should assign primary responsibility to the US Department of Justice for launching, operating and ensuring the integrity of the national system. During the design phase, DOJ should obtain input from states and localities to tailor the system to their needs. DOJ should institute adequate internal controls and auditing protocols to ensure the reliability and utility of the data.
Congress should make state and local participation in the new system a prerequisite for federal funds. All federal, state and local law enforcement agencies should be required to comply with the system’s reporting requirements. Every state should, for instance, has a statewide law enforcement data collection and reporting system. In addition, Congress should allocate sufficient federal funds to enable state and local agencies to implement the new system.
The system should include all relevant law enforcement data (e.g., crimes by type, other call data, police fatalities, police misconduct, forcible entries and tactical-team deployments). It should encompass a national police misconduct registry to enable agencies to identify officers with multiple complaints and misconduct incidents. In addition, the system should encompass video data. All law enforcement agencies should be required to use body and dashboard cameras, record all interactions and maintain comprehensive publication and storage controls.
At the local level, law enforcement agencies should develop robust internal monitoring systems to discipline offending officers and compile data for training new officers. Such internal monitoring systems should include the review of relevant data (including video footage) and protocols for monitoring and addressing performance issues. In addition, state and local agencies should increase public and media access to investigatory and disciplinary records (e.g., release such data or explain the reasons for not doing so within 30 days of each request or incident).
Accountability requires rigorous reporting and external monitoring. Each state should have a mechanism for monitoring state and local agency performance data, including law enforcement data. Every state should have a special legal unit (with subpoena powers) to ensure independent investigations and prosecutions of public employee misconduct, including civil rights and pattern and practice cases. Finally, every state should have an independent audit unit to examine state and local government performance issues (e.g., fraud, waste and misconduct) and recommend new operating practices.
There are many views about the best way to apportion liability for law enforcement abuses, and this is a debate worth having. The challenge is to strike the optimum balance between public service and accountability. What sanctions are appropriate for egregious police misconduct? At what point do such sanctions become so burdensome that they discourage young people from becoming law enforcement officers? This is not an easy balancing test.
Still, the penalties must be severe enough to discourage law enforcement officers from using excessive force or committing other abuses. Certainly, there should be some accountability, like banning paid leave during an investigation (with an entitlement to back pay when the charges are dismissed) or immediate dismissal upon conviction (with an update to the misconduct registry). Localities also should reassess the way in which they finance and report police litigation costs (e.g., prior voter approval of any debt issuance for litigation costs or an equitable system for allocating insurance premium costs).
Upgrade Licensing and Training Standards
Arguably, the single most important strategy for changing organizational culture—and achieving long-term reform—is to revamp law enforcement training, licensing and certification. The major elements of this strategy are outlined below.
First, we should establish federal guidelines for law enforcement training, licensing and certification and unify state standards in accord with those guidelines. To that end, we should form a national task force representing all relevant groups, such as the International Association of Chiefs of Police, International Association of Directors of Law Enforcement Standards and Training (IADLEST) and American Society of Evidence-Based Policing. Using the IADLEST’s guidelines as a departure point, the task force should develop national standards and recommend uniform state standards. Congress should then enact legislation, coupled with funding incentives, to encourage all states to adopt those standards.
Second, we should bolster and standardize accreditation and licensing programs for law enforcement officers and related functions (e.g., crime scene investigation and dispatching). Using the Peace Officer Standards and Training (POST) Commission standards as a framework, we should develop model state licensing standards. Exemptions should be curtailed. Minimum qualifications (e.g., associate degree and academy certificate) and other rules (e.g., weapons) should be harmonized. Congress should make all future law enforcement aid dependent on state compliance.
Third, decertification and suspension protocols should be strengthened and standardized. Maximum times should be established for decertifying officers convicted of misconduct or abuse. Decertification proceedings and records should be fully disclosed, subject to privacy laws. Congress should fully fund IADLEST’s National Decertification Index (NDI) and require all states to participate in that index.
Fourth, training programs for entry-level recruits should be expanded and standardized. Curricula should be revamped to ensure alignment with new public safety/service models. This will likely entail a migration from archaic, paramilitary methods to evidence-based, nonstress training more responsive to community needs (e.g., unarmed crisis intervention and violence de-escalation). It also should entail better training for high-risk situations (e.g., firearms and use of force techniques). Continuing education also should be increased, standardized and funded more robustly.
Fifth, licensing, certification and training authority should be clarified. Each state should have one statewide licensing, certification and training oversight board (perhaps based on the POST commission model). The 660 state and local law enforcement academies should be merged and coordinated by the state oversight board. The oversight boards should be authorized to decertify officers promptly and transparently. State audit units should receive sufficient funding to conduct annual compliance audits of state and local law enforcement training, licensing and certification programs.
Achieving Reform Together
A phased, holistic and inclusive reform strategy can transform the way state and local government serves neighborhoods and protects public safety. It offers such benefits as the following:
- Safer, healthier and more vibrant communities
- Lower crime, recidivism and incarceration rates
- Lower violence, misconduct complaints and litigation costs
- More effective and efficient law enforcement
- More responsive neighborhood communications and services
- Improved community relations and public trust
In short, by being collaborative, data-driven and far-sighted, we can attain reforms that will preserve the safety of our communities, improve law enforcement and ensure justice—for years to come.