Police Line-Level and Agency Accountability Research Paper

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The exercise of discretion – the ability to choose among options for resolving a situation – is bounded by officers’ “intuitive understanding of situational exigencies” (Bittner 1970). Police officers are employees of the public and agents of the state, so there is a general expectation that they will observe the law, treat all citizens equally and with basic respect (even those whose behavior has been the antithesis of respectful), and generally work for the betterment of the community as a whole.

Society must trust the officer’s instincts to make correct decisions in thousands of dissimilar incidents. Law enforcement agencies must create and maintain proper means for shaping and verifying those decisions along ethical lines, to increase the likelihood that officers will choose well. It must also have a proportionate way to respond to misjudgments, whether based on simple error, lack of proper preparation, or some more venal animus.

The good work of policing has been tarnished by a long series of public scandals exposing abrogation of responsibility and lingering distrust generated by police misconduct: incompetence, callousness, brutality, corruption, and criminal acts while in uniform dominate the list of offensive behaviors. At the organizational level, systemic biases – lack of services to a particular population, racial or other profiling, tolerance of brutality, and corruption of the legal process – have been the dominant problems, along with a persistent unwillingness of some agencies to investigate properly any allegations of wrongdoing by employees.

The antidotes to sins of omission and commission by police officers and agencies have been parallel efforts to upgrade police service and improve supervision. The broad philosophical push toward professionalism is one such effort: it is manifested in the hiring, training, and supervisory functions, reflecting articulated values. A narrower bureaucratic focus on rules and regulations complements professionalism by clearly identifying proper and unacceptable behaviors. Each has positive and negative aspects, and sometimes an incisive eye is required to distinguish true adherence to professional precepts from linguistic smoke screens designed to protect less desirable forms of policing (Klockars 1991). These approaches are combined at the agency level in the convention of state or national accreditation.

In addition, police work continues to be subject to external scrutiny and judgment: prosecutorial and judicial review of individual cases and political oversight of agency operations and results. State and federal oversight occasionally is brought to bear at the organizational level in the form of consent decrees when agencies are or appear to be unresponsive to other corrective measures (Walker and Macdonald 2009). Over the last quarter century, citizen review of police activity has been promoted as a local-level control of police behavior, with mixed results.

Professionalism

For years, “professionalism” was claimed by the police because of a single attribute: the desire to govern their own affairs autonomously, as had been the case for the three classic professions of law, medicine, and the clergy. The catchphrase that “only a cop can judge another cop” was passed from generation to generation of police as a cultural meme, despite a lack of supporting evidence. For those generations, the other two attributes of a profession – a unique body of knowledge acquired through years of study and a service orientation – were more honored in the breach than the observance, despite the extensive community service provided by individuals.

Since the crisis of confidence in the police that marked the 1960s, the professional model has made great strides toward filling that void. While the nature of the criminal justice system makes it unlikely that the police will ever be free of external review, the understanding of the relationship of professional conduct to police legitimacy in the eyes of political sovereigns is now widely recognized and serves as a basis for both professionalization and bureaucratic mechanisms. Cultivating professionalism begins with hiring the right people, then training them with a proper orientation to the work to be done, and continuing to reinforce that orientation with adequate supervision and performance feedback.

Hiring

The hiring process is integral to creating and sustaining professional orientation and demeanor. In the best case, it involves a recruiting process that presents a clear articulation of the qualities expected of new employees and of the nature of the job to be performed. A good hiring process will select candidates who are intelligent, both well-educated and attuned to important concepts like cultural diversity and changes in the social and legal environment. Critical thinking skills, a sound ethical grounding, flexibility, physical fitness, and mental toughness are all important attributes for future police officers. In the case of lateral transfers (experienced police officers from other departments joining a new agency), demonstrated good performance and ethical behavior in prior assignments are critical.

The hiring process has its own variance and weaknesses. The hiring pool for a particular agency may be weak, forcing agencies to hire the best candidates from a thin field of applicants. In some cases, too rapid an expansion of a force under political duress leads to cutting corners, trading integrity for numbers (see, e.g., and Harrison and Flaherty 1994, et. seq.). Written tests vary widely in both their rigor and their applicability to policing, and finances or politics may dictate the choice available: civil service tests for larger municipalities may test only for basic city employment, not specific police needs. Physical agility tests tend to be basic fitness gauges and may not indicate mental toughness for more rigorous training or more complex motor skills needed for police work.

Training

Though the best-case scenario for hiring is often limited by resources available to the agency, the process is now bolstered by a formal external control: state certification of police officers under Police Officer Standards and Training (POST) Board standards or other state peace officer requirements. The judgment of the hiring agency must be reinforced by a judgment of fitness by a neutral body with broad responsibilities. The long-standing model for certification and licensing began with the agency hiring a candidate, then putting the rookie through academy training, followed by an FTO period, and then annual retraining and firearms certification. Under that model, the background check preceded hiring and training.

Financial pressures created a second route to police employment, known as preservice certification. Individual candidates make themselves more marketable by paying for their own certification, either at a community college program or by attending a regular state academy. The community college option often involves earning an Associate’s Degree as well as police certification but takes a longer period of time. The regular academy process tends to be shorter, between 480 and 650 hours, though many municipal and State Police academies are longer. In both models, elements of professionalism are embedded in all aspects of the training regimen.

Attaining police certification and licensing demonstrates a basic level of physical skills and intellectual knowledge about police tasks and expectations. It does not necessarily provide insight into a person’s mental orientation to the job, aside from an ability to give “the right answer” on a test. Background checks are intended to fill the void but may take a backseat to the financial benefit of hiring an already certified officer who can go to work after an abbreviated orientation period. A similar flaw attends the lateral-hiring route, where problematic officers may leave a department with a “golden handshake” agreement that will mask their troublesome behavior from a casual background inquiry.

Field Training

New hires are provisional employees in most cases, serving a probationary period with no guarantee of employment, civil service protection, or union eligibility until they have been more fully tested and observed. Field training pairs new officers with an experienced officer who serves a dual role as coach or tutor and evaluator. Where possible, rookies will work with more than one field training officer (FTO) in order to gain additional perspective and avoid the appearance of personal bias.

The FTO period places the rookie in a different testing environment, gauging his or her reactions and applying skills and knowledge to real-world incidents. Performance is graded, and feedback provided, during the experience, always with the intent to reinforce good behavior while correcting substandard work. If a rookie’s work and attitudes do not meet acceptable levels at the conclusion of the FTO period, additional training may be offered to bring performance up to standard. However, if serious deficiencies remain, a sub-performing officer may be separated from the agency at any time prior to the completion of the probationary period.

Supervision And Performance Review

The agency’s responsibility to its employees extends through their careers and takes many forms. Providing training and education to update and upgrade skills is essential to performance levels and opportunities for promotion or other career development. Providing feedback and supervision validates proper behaviors and corrects deviations from acceptable norms of effort, attitude, and exercise of discretion. Organizational expectations may be articulated in one of two main ways: as organizational values or as a series of specific rules and regulations.

Rules and Regulations. The traditional form of organizational direction of its employees is The Rulebook. A definitive set of do and don’t regulations are codified in a growing register. The Rulebook is provided to each new employee, and they are expected to read it, understand it, and internalize its requirements on their own.

The basic problem with The Rulebook is the same problem that leads to the need for discretion: it is impossible to anticipate every possible need the organization will have. Rules and regulations are also amenable to strict interpretation. New rules tend to be added to the book when an employee does something that is clearly unethical or unprofessional, but is not covered by a specific existing rule; the void is then filled retroactively, against future misconduct of that one particular type. Few, if any, of these rules have a specific empirical basis: even though no evidence exists that the conduct would have been widespread without the rule, the lack of subsequent violations is considered sufficient justification to maintain the rule.

Because police officers tend to be concrete thinkers, they are fairly good at following the rules, with the mind-set that “As long as I follow the rules, they [the administration] can’t punish me.” In public discourse, this is referred to as “being in compliance” with organizational expectations. Rule-bound behavior is not always effective at fulfilling organizational missions, however, and pushing the limits of specific rules can extend as far as breaking the law (see Crank and Caldero 2010).

While most issues of error or minor misconduct are handled informally, persistent problems are addressed through a system of progressive discipline, which applies to relatively low-level infractions or performance deficiencies: major problems, such as criminal conduct on or off duty, may lead to immediate suspension or dismissal. For the lesser offenses – usually violations of in-house rules – progressive discipline almost always begins with a verbal warning from a superior officer. No record is kept, as the presumption is that the employee will understand and comply with the correction (the supervisor may make a note of the date and nature of the warning in her or his own records, but the matter is not part of the employee’s personnel file). If misbehavior or substandard behavior persists, a written warning may be issued: typically, these warnings are entered into the employee’s file for a limited period of time and may factor into the next annual performance review. Letters of reprimand are the next step, followed by suspension with or without pay, and finally a move to dismiss the officers if the problem behavior remains uncorrected or worsens.

Progressive discipline is a process of documenting both the employee’s errors or infractions and the agency’s response to them. Like the use of force continuum in a different context, it constitutes a measured response with graduated penalties but can quickly be asserted at higher or lower levels depending upon the employee’s response. The documentation that an employee has been offered additional counseling and guidance, and has failed to respond positively, is an essential element to support more drastic measures such as suspension without pay or dismissal.

The tension between being a public servant (an agent of the state) and a police officer’s Fourth Amendment property right in employment is salient in the disciplinary process. As a general rule, agencies may compel their employees to answer questions about misconduct truthfully; if the employee refuses to answer or fails to answer honestly, they can be dismissed. However, the Fifth Amendment guarantees a right against self-incrimination in criminal matters. The 1967 Supreme Court decision of Garrity v. New Jersey established that “information which is compelled by government” as a condition of employment cannot be used in criminal proceedings. The Garrity Rule was expanded in the 1968 Gardner v. Broderick decision, which indirectly affirmed the right to dismiss employees for not answering “relevant questions about official duties” but reaffirming the protection against subsequent use of any incriminating information thus revealed.

Values. An alternative to the narrowly defined specifics of rules and regulations is a values orientation: broad declarations of expectations, such as observance of the law, fair and ethical treatment of all citizens, and the like. The emerging trend called “transformational leadership” rests in large part upon just such an orientation: desirable conduct is clearly visible as a large picture, not a complex tapestry of small, narrow rules. Values are subject to interpretation, which is a cause of concern for unions and other representatives, but they constitute a broad platform that avoids the “if it’s not in The Rulebook” approach that hinders effective response to clearly unacceptable behavior.

Performance Measures

Most departments have a formal means of assessing an employee’s overall work performance, usually administered on an annual basis. Quantifiable outcomes such as arrests, traffic citations, calls handled, and occasional contributions to other efforts (providing critical information to detectives to help solve a case, for instance) will be recorded and evaluated. Areas of outstanding, acceptable, and inadequate job performance are scored on a scale and become part of the employee’s permanent record, used for decisions about promotion and requests for special duty (Mastrofski 2003).

The disadvantages of performance evaluations can outweigh their advantages if the organization’s oversight is lax. Some supervisors may evaluate all their employees in the middle range, avoiding the need to justify “why he was rated higher than I was.” Others may give maximum marks to all subordinates (“everyone’s a swan” in the words of one commander), especially if others in the organization are known to do the same: few supervisors will knowingly disadvantage their subordinates’ chances for promotion or other improvements. Even without those attitudinal limits, transfers and promotions may present new supervisors with the responsibility to evaluate subordinates whose work they have had only a week or two to observe.

Some performance indicators are administered by the agency but are linked to the external certification. The most visible of these, and arguably the most important, is the firearms proficiency requirement. Any officer who fails to maintain his or her proficiency with regulation firearms is ineligible for street duty. The same may be true for other basic skills, including physical fitness standards: not only is every officer at risk of intense physical activity, their ability to control violently resisting individuals is critical to the safety of their brother and sister officers.

Performance measures may or may not embody all of a department’s expectations, however. Certain standards may be known informally, but never appear in print. Officer initiated activity, whether motor vehicle citations or stop-and-frisk checks, is unlikely to have formal declarations, in order to avoid complaints of bias. While “quotas” are avoided as a negative image, “performance expectations” will be unofficially encouraged and formally enforced, even if nebulously articulated.

In like manner, not all internal controls are paired to The Rulebook or to other formal elements of correction. Transfer to an undesirable shift or other type of assignment is a clear signal of organizational disfavor but without any rebuttable criticism that could be cause for further action. At more intimate unit levels, denial of requests for days off or special coverage serves a similar purpose.

Internal Affairs (IAD)

Most agencies of any size have some office like the old Internal Affairs Unit: police officers who investigate complaints against other officers.

More likely to be called the Office of Professional Responsibility or similar title today, officers in these units investigate complaints originating from citizens and from within the department. Citizen complaints usually center on biased behavior, brutality, or complaints of criminal behavior such as theft of personal property. Because many of these complaints boil down to “he said/he said” situations, officers are often exonerated for lack of evidence. Some may trigger more extensive observation of the officer’s behavior, particularly if a pattern of credible but not conclusive evidence emerges over multiple complaints. In such cases, the investigators are careful to discern between legitimate complaints from citizens and those which appear to be retaliatory complaints from criminals seeking to neutralize righteous police pressure on illegal activities.

Over the course of time, IAD investigations are more successful in validating internal complaints: dereliction of duty, calling in nonexistent stops to avoid unpleasant calls, abuse of sick leave, misuse of departmental equipment, and outright crime such as theft of drugs from the evidence room. IAD investigations are referred to the administrative chain of command for action: hearings are held at the command level for complaints that are substantiated; those which could lead to dismissal are usually at the chief’s decision.

External Constraints

Departmental discipline is not a self-sufficient exercise: it is often bound by decisions made by other bodies. Disciplinary actions can be appealed to civil service boards or reviewed by outside arbitrators, depending upon the state, the municipal situation, and any applicable union rules. Even nominally “at will” employees have recourse for wrongful actions under some circumstances. The appeals process is intended to be a part of checks and balances against biased or arbitrary actions on the part of the agency.

There are a number of high-profile cases where employee “for cause” dismissals that were clearly proper have been reversed by politically distinct agents or entities, saddling the organizations with undesirable employees who seem to be impervious to the usual internal controls.

The civil courts provide the final resort for employees appealing adverse decisions. For agencies that have had to reemploy an undesirable worker, the options are relatively few: restrict the duties and thus the opportunities for harmful conduct (“hide the problem child in a closet”) or return the person to regular duty under close scrutiny and begin the documentation process again (“give him enough rope to hang himself”).

Depending upon the state, decertification may also be a route for dealing with problematic officers. In some states, only the employing agency can initiate a request for decertification for cause. In others, citizens or other entities may also initiate the process, within narrowly defined statutory criteria. There are distinctions between decertification for oversights, which are correctable, and decertification for cause, which effectively ends a person’s ability to work as a police officer in that state. Recertification in another state remains possible, but the International Association of Directors of Law Enforcement Standards and Training (IADLEST) maintains a National Decertification Index (NDI) that tracks decertification cases in many (though not all) states.

Agency Accountability

By definition, accountability for agencies lies with external sovereigns. State legislatures and the Congress define the powers for police acting in their jurisdictions. Local, state, and federal appellate courts define and refine the specific applications of those powers. Municipal, county, and state political bodies control the budgets for the agencies, as well as the power of appointment of the chief in most cases.

Agencies are accountable for at least two levels: for the overall accomplishments of the department, usually but not universally measured by the crime rate, and for the manner in which police services are delivered. Even rising crime rates may be tolerated if the police response to the problems are considered to be positive: the influx of a new drug, dramatic shifts in local economics (both a downturn and a sudden boom), or other new circumstances may exceed a department’s capacity for a short period of time. If a proper foundation has been laid, and communication with the public open and candid, a temporary inability to produce dramatic results need not be negative.

The second level is the activities and attitudes of the agency’s employees as perceived by a significant constituency of the public. Where the agency has little choice but to back its officers in he said/he said complaints on an individual basis, citizens take a broader view of all interactions. Common to almost every complaint about police interaction with citizens (up to and including complaints of excessive force or brutality) is the phrase “no respect.” Complaints about officer attitudes are difficult to resolve, but the enduring effects of widespread perceptions of disrespect by officers can be toxic.

Political Control

Most law enforcement agencies are not autonomous units but rather are a department within a larger government organizational unit: a cabinet-level department in the case of many federal agencies, part of a justice department or working under the state’s attorney general’s office at the state level, and subject to the control of mayor, council, city manager, or other executive power at the local level. Where county police departments exist, they are answerable to the county commissioners or the county executive (see, e.g., Skogan and Frydl 2004, pp. 196–202).

Sheriffs are an exception to the general rule above. In almost all states, the county sheriff is an office authorized by the state constitution. As such, the sheriff is answerable only to the voters of the county he or she serves. In some cases, sheriffs have been voted back into office despite federal convictions for various offenses.

In Hawaii, the sheriff’s division is a part of the Department of Public Safety. Alaska has no counties, and thus no county sheriffs (Alaska State Troopers provide law enforcement services where no local police department exists). Connecticut eliminated the constitutional office of sheriff in 2000 in response to a series of corruption scandals. Because the office of county sheriff was written into the state constitution, a constitutional amendment was required. By a margin of almost two to one, voters in Connecticut eliminated the office of sheriff, transferring its duties to the existing Judicial Department and to a newly created office of marshal, who were to be overseen by a State Marshals Commission.

As a rule, when agencies are underperforming or malfunctioning in the eyes of their political constituents, the most common response is to replace the chief (by whatever title). The old “Chief for Life” convention is largely gone, replaced by a renewable contract for fixed terms, usually between 3 and 5 years (Mastrofski 2002). Since most chiefs serve at the pleasure of the administrative unit (whether an individual or a board), the contract preserves their property right, but not their tenure: a severance agreement must be reached if the chief is dismissed for political reasons, such as a change of mayor or board, though a dismissal for cause usually voids the contract.

It is a commonplace in law enforcement that if a chief leaves for another post or retirement when an agency is performing well, her replacement will come from within the department. If there is dissatisfaction with the overall performance of the agency, a replacement will be chosen from outside, with a mandate to institute organizational change.

Even if that perception is based on a generally reliable fact pattern, it overestimates the effectiveness of the chief executive. Like replacing the coach of a losing team, the malfunctioning players remain. If the problems of the organization stemmed from defective leadership, a new approach from the top position may very well turn performance around. If the root problem is an entrenched cultural one, change will be more difficult to achieve. Incompetence can be addressed by the infusion of new leadership and training resources; malevolent or self-serving cultures are more difficult.

In some instances, police agencies are simply disbanded, though that is much easier to do for smaller jurisdictions than larger cities. Scandal is often not the reason, though it has accounted for some instances. Budget difficulties are more often the reason, sometimes complicated by a desire to eliminate union rules or defined-benefit pension obligations, as is alleged in the 2012 elimination of the Camden (NJ) Police Department.

When such instances occur, law enforcement duties are transferred to another agency. Camden is incorporating with the county police; many small towns contract with their county’s sheriff’s office or rely upon State Police for the infrequent problems that arise. Contract cities are relatively common in the American Southwest, with Sheriff’s Departments providing a specific number of hours or standard police presence, in addition to emergency responses and criminal investigations as needed.

Accreditation

The agency-level articulation of professionalism is embodied in a set of national standards articulated by the Commission on Accreditation for Law Enforcement Agencies (CALEA). Using an accreditation model similar to that used in higher education, CALEA promulgates “gold standard” sets of agency requirements across a broad spectrum of issues, from rules and regulations to equipment, training, personnel standards, bona fide occupational standards for specialty positions, and others (CALEA n.d.). CALEA specifications are tailored to meet the different situations found in the broad range of law enforcement agencies, including size and available resource. After revising their operations and documenting the results, agencies apply for an independent evaluation of their adherence to these standards.

Accreditation is an attempt to formalize legitimacy of police operations and is often offered as a hypothetical defense against liability. Whether it actually serves that purposes remains an open question; few serious challenges have been mounted. The national accreditation process has also been criticized as time-consuming and expensive. The latter condition has led to the creation of state-level accrediting bodies (see, e.g., California CALEA n.d.).

Citizen Oversight

At the local level, dissatisfaction with the organization’s internal controls may give rise to a call for citizen review of complaints. When this occurs, the cause is often not dissatisfaction with overall results but with a perceived lack of effective action taken against malfeasant officers (Skogan and Frydl 2004, pp. 202–204).

Citizen oversight – often called “civilian review” – is one of the responses to the belief that “the police protect their own” rather than serve the broader interest of the public. Different models of direct citizen oversight have been tried and some abandoned over time. One grants citizens an advisory role in the disciplinary process, but no direct input. A second limits citizen input to a general review of cases over time, again without direct input into individual cases. Yet another allows for citizen participation in the investigatory process, including the right to be present on case review boards, but without any real power: the results of the investigation are referred to the agency’s internal process for adjudication. The most controversial form, and most desired by community groups, is a direct role in investigating complaints, with a power to recommend discipline. Even in this most stringent form, however, the final decision almost always rests with the police chief or other internal body.

Police fear that citizens cannot fully understand what police officers face in confrontational, potentially dangerous situations and thus are likely to be overly critical, with unrealistic expectations about police capacities. For their part, citizens consider themselves considerably more realistic than police give them credit for: not only do they deal with the same difficult individuals the police do, but they do so for longer periods of time and under a wider set of circumstances. Moreover, they are also capable of distinguishing between good police service and poor service.

The citizen review option is not a panacea. Selection of the oversight board’s members can become a highly politicized process, with police advocates contending against police critics for the slots. Police themselves – fearing a “stacked deck” of longtime police critics, who are often the persons pushing the reform – may attempt to game the system by encouraging the candidacy of those who believe the police can do no wrong, ever.

In most cases, however, civilian review boards have faced the same dilemma that confronts police internal processes: the lack of definitive evidence of an officer’s conduct, as well as the conduct of the accuser. That state of affairs has undergone a rapid and radical shift in recent years, however, with the proliferation of cell phone cameras and other visual media. The “low visibility environment” that once protected police misconduct in the field is now almost fully illuminated by citizen witness video. From George Halliday’s incomplete video of the Rodney King incident to the pepper spray incidents at U-Cal Davis and the G-20 protests in Toronto, individual video records have verified complaints of misconduct that in prior years would have been dismissed. Video is a neutral witness, however: dashboard cameras in police cruisers, GPS tracking systems, and even private security videos have exonerated police officers from false complaints of misconduct.

Consent Decrees

In a relatively small number of cases, the United States Department of Justice has stepped in where police agencies demonstrate a “pattern and practice” of abusive or derelict performance. The most famous case is perhaps the consent decree with the state of New Jersey over claims of racial profiling in the 1990s, complaints that were validated by the State Police records and training materials.

The intent of a consent decree is remedial more than it is punitive, though the restrictions placed upon the agency are often perceived to be punitive: the loss of autonomy is itself a punishment. Toll-free complaint lines, independent auditors, onerous reporting duties, and other requirements are generally part of a comprehensive plan to force a new manner of performing police duties, under scrutiny. The consent decree is also a signal to the political entities responsible for the agency that drastic change must be created internally. Many of the avenues of recourse described above may also come into play at the local level while the consent decree is in place.

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