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A Review of Civilian Review
by John Chasnoff
A rose is a rose is a rose. A very clever phrase and undeniably true, unless you are a rose aficionado. To the expert, an American Beauty is definitely not an Amber Queen. The devil, or the rose, is in the details.
The same can be said for Civilian Review Boards (CRBs). In the arsenal of tools used to hold police accountable, CRBs are both touted and dismissed by activists. For years they were thought of as the means to end police brutality against our most vulnerable citizens, yet great frustration has set in as most Civilian Review Boards have proven ineffective. The blush seems to have faded from the rose.
So what are Civilian Review Boards? Why have so many failed, and do they still offer hope in the battle to gain community control over police abuse?
The first attempts to create police standards of behavior began in the 1920s. This was the era of police “professionalism.” It saw the creation of written policies on use of force, arrest procedures, etc., and the advent of Internal Affairs Departments (IADs) to uphold the new standards. Eighty years later, this is still the typical model; complaints generated internally or by citizens are investigated by IAD and recommendations for discipline are passed on to the chief of police. It was not long, however, before citizens realized that police were not adequately investigating themselves. IAD too often sees issues from the police perspective only, making excuses for those who stretch or shatter the limits of proper behavior. They are prone to pressures from superiors to cover-up politically embarrassing incidents. Often they actively dissuade a citizen from filing complaints if that citizen comes from a powerless, discounted population (the poor, people of color, youth) or if they prejudge the case as being too hard to prove.
… most Civilian Review Boards have proven ineffective.
By the late 1940s, therefore, activists began to push for Civilian Review Boards. These would be panels of citizens who were authorized to take and investigate complaints from their peers. An independent perspective, it was believed, would more fairly discipline violators and change future behavior.
Civilian Review sprang up in Kansas City, Washington, DC and New York City. Unfortunately, these early attempts were not immediate successes. Implementation has never been easy. Funding has always been a major and ongoing issue. Without a proper staff or adequate resources, Review Boards often develop a huge backlog of cases; citizens are not well served. Furthermore, police unions have been adamantly opposed to civilians “second-guessing” their actions, and have fought Review Boards in legislatures and in courts. Litigation has kept the Boards in limbo for years or stripped the Boards of powers crucial to their effectiveness. CRBs have not met activist expectations that they would rule against officers more often. Both IADs and CRBs sustain complaints against officers only 10–15% of the time, constrained as they are by “he said/he said” scenarios with few outside witnesses and a lack of hard physical evidence.
These experiments were not without their successes. Citizens have felt more comfortable bringing complaints to an independent body. As a result, the number of complaints often rises dramatically after implementation of a CRB, giving citizens a more accurate picture of the problem. Mandated public reports by the CRB have also been helpful in analyzing issues involved. Citizens are therefore able to see such statistics as number of complaints, breakdown by the race of complainants, the success of complaints as compared to the race of the complainant, the number of complaints for excessive use of force, racial profiling, etc.
Civil rights tensions and progress in the 1960s caused the creation of many more Review Boards but few experimented with formats different from earlier models. In the mid 80s, however, CRBs began to proliferate and throughout the 90s various cities experimented with different types of structure. Today there are three major types of Citizen Review.
The independent investigative model
True to the structure of the earlier models, these Review Boards stress their independence from the police department and their own investigative powers. They insist that their purse strings not be controlled by police. Board members are usually appointed by the mayor or city council. Some cities require that they have no prior police experience, to ensure a civilian perspective. They have a staff of investigators who take complaints and conduct the investigation. In any investigative model, subpoena power is of the utmost importance. Without that power, no investigation can be complete. Reports from Albuquerque, a city without subpoena power, indicate that officers simply refused to show up when requested. In either case, investigators’ findings are usually presented to the Review Board at a hearing (sometimes public, sometimes not) and a finding of fact is reached.
Boards differ in the standard of proof required to sustain a complaint. In some cities, “beyond a reasonable doubt” is required; others demand the less restrictive “preponderance of evidence” standard. This seemingly small detail has profound effect on decisions reached.
After a finding of fact, some CRBs have the power to discipline officers directly. Others make recommendations to the chief of police, who makes the final decision.
The review and appellate model
In cities which take this approach, the Review Board does not conduct its own investigation. Sometimes it is empowered to take complaints (to make that part of the process more palatable for citizens) but then turns the case over to IAD. Its main function is to review IAD’s completed investigations to determine if they have been properly conducted. Some cities grant the power to return a case for further investigation if the initial investigation is deemed inadequate. Others allow only for an alternate decision which is forwarded to the chief. Along with this review function, or instead of it, some Review Boards are set up to hear any appeals if either side is dissatisfied with IAD’s decision.
John Chasnoff and Zaki Baruti put cross where victim was killed by St. Louis police, October 22, 2002
These Boards are either independent or set up as entities inside and reporting to the police department hierarchy.
… subpoena power is of the utmost importance.
The auditor’s model
The most recent reform model does not allow for a Review Board at all. Instead, a single auditor is appointed to oversee the police department. He is not given the mandate of either taking or investigating individual complaints. Rather, his job consists of studying department policy, taking into account the incidents and complaints which occur over time. The hope for this model is that the auditor will effect change in department policies and the overall culture of the department.
This model relies on the appointment of a single person with notable expertise and the ability to win the confidence of all parties. The auditor must have access to all police records. His authority to mandate change may vary from city to city.
Pros and cons
Grassroots activists often advocate for the independent investigative model. Because they are more in touch with those affected by police misconduct, their level of suspicion is high. They believe most strongly in the original rationale for Review Boards — that police cannot police themselves and only an independent non-police perspective is trustworthy. Unfortunately, the track record of the original CRBs is not stellar, for reasons given earlier. Analysts disagree as to the cause of these failures, however. Some academics suggest that the model is itself flawed. Because it is by structure adversarial to the police, it cannot but generate police suspicion and non-cooperation. The result is the creation of institutions without the political support necessary to garner sufficient powers and maintain funding.
Many activists would argue that anything less than complete independence and separate investigative powers is an unholy compromise. They maintain the need for further organizing to overcome the political inertia which holds Review Boards back. They want to press forward with even greater reforms to ensure CRB viability. Thus, several cities around the country have citizen groups advocating the election of board members to ensure grassroots input, the necessity of subpoena power where it does not exist, and the mandating of a specific ratio of CRB investigators to police officers to guarantee that the CRB is not overwhelmed. They argue that the independent investigative CRBs have failed largely because they were the first pioneers, therefore meeting the most resistance and working out the bugs inherent in new systems.
The Appellate or Review Model is by all accounts the most tepid of the three approaches. Many reformers believe that this approach is appropriate in cities with less mistrust of police and where only a gentle civilian oversight is needed. Advocates also cite the significant reduction in funds needed when no investigative bureaucratic structure is required. Militant activists think that the Review model is inherently weak. They believe it is not feasible to get at the truth from simple reviews of an IAD investigation. How can you tell which questions were not asked, which leads not followed, or which details left out of a report? Police investigators who characterize a witness as “uncooperative” or testimony as self-contradictory may be skewing the facts in a fellow officer’s favor.
Advocates of the Auditor approach are the current cutting edge in academic circles. They state that previous attention to individual officers has not resulted in pervasive change. They have seen little evidence that officers learn to change behavior based on the discipline of a peer. They simply argue with the disciplinary result. Greater reform will result, advocates state, by approaching the problem on a broader scale. Their goal is to examine policy and make reforms which will alter the whole culture of accountability in a department. They cite studies which indicate that police misconduct on the street is often the result of poor policies or inadequate supervision. Furthermore, they believe this approach is less confrontational, since individuals are not at risk, and will result in more cooperation from the police. Finally, funding is less of a problem since a smaller staff is required.
Grassroots activists often advocate for the independent investigative model.
Again, grassroots activists are leery of any insider approach. They fear that an auditor may become co-opted by the police perspective after working too closely with them. Secondly, they resist any system which does not attempt to achieve justice for individual victims of police brutality.
October 22, 2002 rally by Coalition Against Police Crimes and Repression, St. Louis.
Current status
So where are we today? No one believes we have found all the answers, or that any Civilian Review Board will suddenly end police misconduct. The search for better solutions continues along two fronts, mutually complementary to each other.
New hybrid models of Civilian Review have begun to emerge. They try to take the best from earlier models and reform weaknesses. Thus, Los Angeles County has an Auditor whose attempts to reform policy are seen by some as effective. He is complemented by a team of attorneys who monitor ongoing investigations, make recommendations as to how an investigation should proceed, and who have the authority to send an investigation back to IAD if it is incomplete in any manner. Portland, Oregon has one office which takes complaints and can review the IAD investigation and send it back for further work. A separate group of citizens can hear appeals. Portland Copwatch, a citizen’s advocacy group, argues that the process has been co-opted and continually undermines the powers of the Citizen Review Committee in its appellate function. Albany, New York allows its board to review IAD investigations and call for an independent investigation if necessary. Dayton, Ohio has an ombudsman who decides to refer a complaint to IAD or have his/her office investigate. There is also a Citizen Appeal Board. Salt Lake City allows for concurrent Review Board and IAD investigations. The Review Board investigator can sit in on IAD interviews and take notes, or can conduct a separate interview. Seattle, Washington has an IAD which is headed by a civilian.
Many cities have come to recognize the importance of citizen input on policy as well as individual cases. Therefore, a vast majority of newer Review Boards has a mandate to make policy recommendations, no matter what form they embrace regarding the review or investigation of individual cases.
Activists in St. Louis, including the Gateway Greens, have worked for years to create Civilian Review. A bill pending before the Board of Aldermen is scheduled for a vote near the publication date for this article. The grassroots people who have put the bill together believe it is cutting edge. The Board would consist of seven members, three appointed to give city leadership a voice, and four elected to give citizen input a majority. IAD and the independent CRB investigators would conduct a joint investigation, with both sides having equal power to call witnesses, conduct interviews and determine facts. Both IAD and CRB investigators would forward their conclusions to the CRB, which could request further investigation or conduct an independent investigation if still not satisfied. Mediation of the complaint would be encouraged if both sides agree. Activists hope that under this system the IAD process will be more transparent than it is when the CRB investigation is wholly separate. Bureaucratic duplication and expense will be minimized, and cooperation will be possible but not relied upon. Subpoena power is a necessity.
On a second front, supporters of CRBs have come to realize that they will not function optimally if working in a vacuum. Therefore, there is some movement toward putting CRBs into a larger context of police accountability systems. For best results, accountability systems should be both internal and external, and should reinforce one another. Thus there is a new push to perfect and implement Early Warning Systems (EWS) which seek to identify problem officers by looking at such factors as their use of force, arrests based on resisting arrest which are often used as cover for abuse, absenteeism and personnel reports. If properly implemented, the Early Warning System draws on data from complaints as well. Because CRBs generally foster greater reporting of complaints, they are viewed from this perspective as positive factors in generating information for the EWS. The EWS is justified by statistics showing that a few officers are disproportionately responsible for misconduct in any department. If officers’ problems are identified early, they can be corrected, or the officer can be relieved of duty before getting out of hand.
The Appellate or Review Model is by all accounts the most tepid of the three approaches.
Undoubtedly, the experimentation and reform will continue. So will the debate among activists as to whether Civilian Review Boards are worth the effort. Police abuse will not end without a large-scale restructuring of a society which minimizes the value of some citizens and requires the suppression of one class by another. But in the meantime, reforms achieve some measure of justice for individuals, head off some future abuse, and perhaps alter the climate to move us toward greater changes.
John Chasnoff, a member of the Green Party of St. Louis, combats police brutality with the Coalition Against Police Crimes and Repression.Suggested reading
Samuel Walker, Police Accountability, 2001. Belmont, CA. Wadsworth/Thompson Learning. 205 pp. The best overview of civilian review.
Michael W. Quinn, Walking With the Devil — The Police Code of Silence, 2005. Minneapolis: Quinn and Associates. 181 pp. An ex-officer gives the inside scoop on how cops become abusers.
David A. Harris, Good Cops — The Case for Preventive Policing, 2005. New York: The New Press. 304 pp. The case against post 9-11 policing and in favor of community policing.
Samuel Walker, The New Paradigm of Police Accountability, Saint Louis University Public Law Review, Vol. 22, No. 1, 2003. pp. 3–52. The case for putting civilian review in a larger context of accountability.
Merrick Bobb, Civilian oversight of the police in the United Sates, Saint Louis University Public Law Review, Vol. 22, No. 1, 2003. pp. 151–166. An evaluation of various forms of civilian review by a leading practitioner.
Websites
http://www.policeaccountability.org — Leading expert Samuel Walker’s helpful site with links.
http://www.nacole.org — National Association for Civilian Oversight of Law Enforcement.
http://www.parc.info — Police Assessment Resource Center. See their study on Eugene, Oregon for an overview of Civilian Review and the specific structure of many CRBs around the country.
http://www.october22.org — October 22 Coalition is the leader of a large, annual day of protest against police brutality.
http://www.copwatch.com — Copwatch, mostly on the West Coast, has been monitoring police abuse for a long time. Portland puts out an excellent newsletter.
[22 feb 06]