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New Executive Order Promotes Accountability

Posted on by Nicholas Frankel

On May 25, 2022, President Joe Biden issued an executive order to address many of the issues that have been a part of the national police reform discourse over the past two years. The order, formally titled Executive Order on Advancing Effective, Accountable Policing, and Criminal Justice Practices to Enhance Public Trust and Public Safety, takes action on reform measures at the federal level, where attempts at more sweeping legislation have been paused since late last year.

Executive OrderWhile the text of the order is lengthy, the subject matter and policy priorities reflected in it should not surprise those following the progress of police reform legislation across the country. Much like state-level reform efforts, the order seeks to build public trust through transparency and accountability while acknowledging that law enforcement officers are “frequently call[ed] upon… to respond to social problems outside their expertise and beyond their intended role, diverting attention from their critical public safety mission and increasing the risks of an already dangerous job”.

At Benchmark Analytics, we carefully track executive orders and law enforcement legislation at all levels of government. What follows is a breakdown of what is in the executive order, what’s not, and, most importantly, what the executive order on police reform means for law enforcement leaders and officers.

Federal Policy Changes

Executive orders are a powerful tool for a president, allowing them to bypass the legislative process to enact policy quickly. However, they are also, by definition, limited in scope. The more immediate policy changes required by the executive order primarily affect federal law enforcement agencies. These policy changes impact the following areas:

  • Use of Force: By November of 2022, the heads of federal law enforcement agencies will be required to submit use of force data to the FBI National Use-of-Force Data Collection database on a monthly basis. Furthermore, federal law enforcement agencies under the Department of Justice (DOJ) are required to align policies and training to a 2021 DOJ policy that generally prohibits the use of neck restraint.
  • Internal Affairs: The heads of federal law enforcement agencies are required to develop and implement evidence-based training programs for officers concerning implicit bias and profiling. The executive goes a step further in mandating the agency leaders establish procedures for “receiving, investigating, and responding meaningfully to complaints alleging improper profiling or bias by Federal law enforcement officers”.  The order establishes both a standard by which officers are trained and, crucially, an accountability mechanism in creating a formalized internal affairs process for investigating and resolving misconduct allegations.
  • Training: The Director of the Office of Personnel Management and the Attorney General is tasked with developing an anti-bias training module for federal law enforcement agencies, covering “implicit bias and avoiding improper profiling based on the actual or perceived race, ethnicity, national origin, limited English proficiency, religion, sex (including sexual orientation and gender identity), or disability of individuals.”
  • Federal Database: The Attorney General will establish a National Law Enforcement Accountability Database in early 2023. Disciplinary data, citizen complaints, and decertification data will be included. Federal agencies will be required to report to this database, while state, local, tribal, and territorial agencies will be strongly encouraged to report relevant data.

Local Impacts

Though the immediate policy implications of this executive are, by nature, primarily at the federal level, the order does make efforts to apply these changes to law enforcement as a whole. Limited by the power of executive action, the order seeks to affect these changes through best practice and policy recommendations and use grant funding to encourage state and local departments to adopt the changes outlined in the document. A few key elements of the policy recommendations include:

  • Developing guidance and best practices to strengthen officer recruitment and retention.
  • Identifying needed resources to enact the officer wellness work contained in the Law Enforcement Mental Health and Wellness Act of 2017.
  • Supporting state and local agencies seeking accreditation.
  • Clarifying regulations on agencies seeking military surplus distribution programs.
  • Generally supporting, though grant funding incentives, the adoption of the federal law enforcement standards

A Blueprint for the Future

In the absence of federal reform legislation, this executive order has generally been received as a step in the right direction in addressing issues of transparency and accountability in policing. A press release from the International Association of Chiefs of Police (IACP) and the Fraternal Order of Police (FOP) characterizes the order as “a good faith effort by all involved to reach accord without compromising any core values or issues” while also stating “A broader approach to overall systemic issues needs to be a priority of all elected officials.”

With its input from professional organizations representing officers as well as police chiefs, there’s reason to believe that the action items contained in this executive order have the potential to make an impact on both law enforcement and the communities that depend on effective and transparent policing.

 

Reform Trends in 2022: A Mid-Year Review

Posted on by Nicholas Frankel

As we approach the mid-way point of 2022, we decided to look back at the year – unpacking some of the reform trends we’ve seen so far and exploring what they may indicate about the future of legislative police reform efforts.

This year’s legislation concerning police reform has, so far, been something of a departure from the previous two years – both in terms of pace and the subject of enacted bills. We’re seeing legislation take a more deliberate path forward after an initial flurry of legislation in 2020 and 2021 tackling hot-button issues like restraint tactics and duty to report. This more deliberate approach is reflected in legislation and funding priorities that emphasize mental health, both in law enforcement and in the larger communities they serve. Additionally, a waning “defund” movement has ceded ground to the notion that police need more resources, not fewer, to fulfill their duty to their communities amid rising crime and greater need.

Deliberate Reform Trends

The pace of reform-oriented legislation has noticeably slowed in 2022. As of this writing, 125 bills have passed in 2022 – compared with 366 In all of 2021. Notably, policy changes required by many of these new laws are comparatively minor as opposed to the sweeping changes seen in policing operations in late 2020 and 2021. With the most urgent public concerns largely addressed in previous legislative sessions, policymakers are turning their focus to some of the more fundamental issues in policing.

A significant portion of state-level legislation enacted in 2022 expands mental health resources for officers and agencies, both in direct support to officers and setting funding priorities for community mental health resources like crisis intervention teams. To replicate the demonstrated success of department-based peer support programs, South Dakota, Louisiana, Texas, and Indiana have passed laws in 2022 that provide funding for these programs. Research shows that peer support is consistently among the most effective tools to help officers with the daily stresses of their work and in processing traumatic incidents that may occur while on patrol.

The ‘Defund’ Question

Many in law enforcement have been closely following the political and cultural debate around “defunding police” that emerged immediately following several high-profile incidents in 2020. The notion that outcomes related to crime and policing could be improved with less funding seems to be on the wane in 2022 amid a rise in crime rates seen in many parts of the country. In fact, in many cases, elected representatives and municipal officials are requesting and approving increased budgets to confront an uptick in crime rates.

Public opinion is certainly a factor in the pushback against reducing law enforcement budgets. A survey from the Pew Research Center showed a swing in public sentiment around police funding in 2020, with a majority of respondents stating police budgets should either remain the same or be reduced. When posing the same question a year later, researchers noted another swing in public opinion, this time with survey results indicating across-the-board increases, in some cases double-digit increases among certain demographic groups, in support of increased police funding.

Adding to the urgency for increasing police budgets to tackle rising crime is a consensus forming around a school of thought that believes reversing rising crime rates is a crucial component in the “return to normal” from the pandemic’s peak. Increased crime rates, especially in urban public transit systems, are thought to be a significant barrier to returning to a pre-pandemic way of life in cities. At the federal level, policymakers are urging state and local governments to devote federal pandemic relief funds to law enforcement.

Revisiting Enacted Laws

Roughly two years from the rush to pass reform legislation, especially laws addressing restraint tactics and reporting, there is an early indication that some of these laws may yet be subject to reconsideration or revision. In March of 2022, the governor of Washington state signed HB 2037, which clarifies that police can use force to stop a subject from fleeing temporary investigative detention. Elsewhere, changing political realities are leading to the expectation that new administrations may revisit other state-level police reform laws. Lastly, legal challenges to state-level police reform levels, such as one recently filed in Colorado. Indicate further challenges to these laws may lay ahead.

While it is difficult to “read the tea leaves” of political change and legal challenges, there is evidence that the push for reform over the last two years will continue to be revisited as experience and research add to the understanding of the effectiveness of these legislative efforts.

Though the pace of reform legislation has slowed compared to previous years, it is a mistake to believe that the reform trends are becoming less impactful. On the contrary, efforts to provide mental health and peer support funding are vital to addressing the root causes of burnout and fatigue among law enforcement officers, contributing to adverse events. Furthermore, there seems to be an early indication that legislators are interested in revisiting previously passed laws to improve them by balancing the need for public safety and trust with officer readiness and effectiveness.

How Do Stakeholders Feel About Data and Transparency?

Posted on by Nicholas Frankel

Data transparency in law enforcement may seem straightforward, but, as we explored in our last blog post, the issue is a lot more complex than simply opening up public-facing data portals and expecting those actions alone will build public trust. The relationships between transparency, accountability and public trust are nuanced and complex — and require intentional study and planning to incorporate into effective data transparency policies. Many of the primary stakeholders in data transparency efforts – the public, researchers, and police leaders – have distinctly different needs from data transparency efforts. This post will look at how those stakeholders interact with open data initiatives and where those needs overlap.

Leaders in the Field

Data Transparency in PolicingUntil recently, there were few attempts to rigorously document the attitudes policing leaders held about transparency initiatives and data sharing. Policymakers and the general public assumed that law enforcement executives were, at best, skeptical of data-sharing and public transparency tools. While more research is certainly needed, a 2015 paper was among the first to shed light on how these leaders approach transparency, and, to many, the findings were surprising.

For generations, the standard way police leaders approached transparency was as a function of public relations – a way to guide the narrative and assuage public concerns. As we entered the era of internet saturation at the turn of the 21st century and the subsequent proliferation of social media, thinking changed. New tech tools and web-based portals made it less labor-intensive to distribute policing data. This transformation happened at about the same time as a growing consensus among leaders showed that data transparency could be used to build public trust proactively rather than as a reactive tool.  

Through sophisticated and careful data coding, that 2015 study showed that police leaders have a remarkably nuanced set of views on transparency and data dissemination. Most leaders don’t view these efforts as a waste of resources or a distraction from the mission. Instead, they view these efforts as necessary to educate and communicate directly with the public and enhance their department’s reputation. Another striking element of the study was the high degree to which police leaders felt it was “personally important” to share data with the public, indicating a meaningful and lasting sense of buy-in.

Asking the Experts

The massive amount of policing data available to researchers is generally welcomed as a positive development. The continuing trend of moving from paper to electronic records reduces some of the legwork once required for extensive research. However, such vast troves of data are not without their problems, as detailed in a 2020 research paper published in Frontiers in Psychology.  

One of the most substantial issues in collecting and analyzing data is the difficulty of standardizing how it is reported. Efforts at creating a national database with uniform standards have largely stalled, leaving researchers to navigate a patchwork of state and local data sources. These disparities can create inaccurate data, such as in the case of hate crimes reporting where, in the past, if agencies didn’t have any hate crimes to report in a period, it was mistakenly classified as a failure to report as opposed to simply having no relevant data to report – a substantial and very meaningful difference to researchers.   

This inconsistency in the way data is reported potentially makes it difficult for researchers to “code” data – that is, uniformly classifying data points to draw insight or conclusions from the sets. Examples of this are differences in language describing the use of force incidents to variations in state laws that classify similar crimes under different categories. Furthermore, missing data, especially demographic data, in police reports and other data sources can present an incomplete picture of an encounter, making it difficult — if not impossible — to establish consistency and correlation.  

Public Sentiment

Professionals generally recognize the multifaceted value of data transparency in policing, but where does this leave the general public? In our previous post, we looked at how, in the public’s perception, transparency and accountability in policing are often linked with the underlying philosophy behind transparency efforts supporting the stated goal of improving public confidence in policing. With this, it stands that research studying public feelings on law enforcement can offer some insight into the efficacy of these efforts.

Gallup has conducted longitudinal survey research into public confidence in policing for the past 27 years, making it one of the longest-running surveys of its type in the country. The most recent figures show a dip corresponding with several high-profile incidents of recent years. While these figures represent a low over the course of the survey, there is reason to think these numbers may trend upward in the coming years.

Highly visible yet typically isolated incidents of police misconduct are often followed by periods of broad legislative and regulatory changes in policing. In the past two years, dozens of states and even more local governments have passed new laws requiring greater transparency and reporting of police data. Many of these laws are centered around use of force reporting, mandating that departments track use of force and other data points and that officers report and even intervene in alleged misconduct.  

The Long View 

Though it is too soon to say conclusively, some early indicators suggest there may be shifts in public confidence on the horizon. Newly published survey data from Pew Research shows that there’s been a substantial swing in respondents from diverse demographic backgrounds saying they want increased spending on policing in their area. It is important to note that these responses don’t directly indicate growing confidence in policing as a whole. However, on the other hand, the survey respondents seem to have enough faith in law enforcement agencies to trust them with more public dollars.  

The discussion around data transparency in policing will undoubtedly evolve, reacting to current events and new frames of analysis. Time has shown researchers, law enforcement leaders, and the public all value transparency in policing but often with different motivations. By understanding these differences, law enforcement leaders and policymakers will be able to better craft policies and open data practices that serve the needs of the diverse group of stakeholders.  

Duty to Intervene: Converging Public and Policing Priorities

Posted on by Nicholas Frankel

A frequent point of debate surrounding alleged misconduct caught on video is the nature and extent of a fellow officer’s duty to intervene. To a member of the public viewing a news report or social media video of these types of events, the perceived lack of intervention in what appears to be clear misconduct can create confusion and further an emotional response to videos of these events. Despite common public perception, rarely are these instances of indifference on the part of multiple officers but rather part of a complex ecosystem of factors including but not limited to inadequate training, culture, and seniority.

This article takes a high-level look at the duty to intervene in law enforcement: how we got here, what the current state of mandates are, and how agencies are responding. Future articles will look at the facets of this issue in greater detail.

What is duty to intervene?

Duty to intervene regulations require an officer who witnesses misconduct or excessive use to “interrupt” the event using words. Laws vary between states, municipalities, and jurisdictions but generally, they require that an officer intercedes in circumstances where misconduct or excessive force might cause harm to a suspect or member of the public. In many cases, these regulations complement duty to report regulations requiring officers to report excessive force or misconduct to superior officers, internal affairs, or other relevant bodies.

From mid-2020 to the present day, there’s been a wave of state-level legislative efforts crafted in reaction to public calls for increased transparency and accountability in the wake of high-profile policing incidents. Duty to intervene requirements have been visible and prevalent aspects of these efforts. The perception that officers witnessed excessive force and did not intervene was a significant driver of the public outrage that sparked protests around the country and world which, in many cases, led to legislation altering or enhancing duty to intervene requirements. Since 2020, 13 states have passed legislation mandating a duty to intervene – in addition to countless municipalities and agencies creating their standards for intervention.

A Complex Issue

While legislative fixes satisfy public demand for movement on accountability, they leave much of the issue’s complexity to agencies and regulators to tackle. Often intervening in instances of misconduct isn’t an easy task and there are barriers to officers simply “stepping in” when the need arises. Recent media analysis coupled with a paper from the International Association of Chiefs of Police (IACP) identifies some of these barriers:

Chain of command: Many departments operate with a chain of command structure similar to that of the military. These structures can often implicitly or tacitly discourage questioning a superior officer, making it potentially challenging to step in to interrupt actions covered under duty to intervene mandates.

Fear of retaliation: There is a perception that doing something that may cause another officer trouble, whether with internal affairs or another outside regulatory body, can lead to retaliation. This can look like being passed over for promotion or a desired assignment or being ostracized within an agency.

Insufficient training: Intervening usually isn’t as simple as putting oneself “in the middle” of an instance of potential misconduct or excessive use of force. In many of these instances, emotions are running high, and direct appeals to reason or physical restraint may not be the most effective tactics. A growing area of law enforcement training is seeking to address this knowledge gap and build an understanding of what effective intervention looks like.

Training to Intervene

Training for intervention, like other training seeking to address structural issues, is more than just imparting a set of procedures – it instead seeks to build on already present and positive cultural elements within an agency. In 2014, The New Orleans Police Department (NOPD) developed and deployed the Ethical Policing is Courageous (EPIC) peer intervention training program. According to former Commissioner Michael S. Harrison, the program emphasizes a cultural shift away from intervention being viewed as disloyal and instead of being considered as loyalty “on the front end,” characterizing the approach as “let’s let me help you not make this mistake in the first place.

Since the program was enacted, NOPD has shown a decline in use-of-force complaints. While it is likely multiple factors have contributed to these declines in adverse events, the signs are encouraging. Building off the EPIC Model’s effectiveness, leaders at Georgetown University Law Center’s Program on Innovative Policing have developed the Active Bystander for Law Enforcement (ABLE) training program. ABLE utilizes a top-down “train the trainer” model. The training method seeks to promote buy-in by engaging the skills of high-performing officers who have earned the respect of their peers and tasking them to lead training sessions rather than relying on resources outside the department for training.

The ABLE program takes a holistic approach to intervention, emphasizing ten standards that emphasize accountability, community support, moral courage, and officer wellness. As of late 2021, the program has been adopted by more than 140 law enforcement agencies and is shown to lead to fewer disciplinary actions and job losses among officers and improvements in community/police relations and officer job satisfaction. New modules for non-sworn civilian staff and corrections officers are currently under development.

The duty to intervene often isn’t as simple as it sounds and there are no quick fixes. Research-based training programs point to shifting the culture around intervention – reframing the practice as not punitive or disloyal but as one rooted in accountability and the notion of looking out for one’s colleagues and their best interests. Successful implementation of duty to intervene mandates serves both the public interest in transparency and accountability while reducing misconduct claims and contributing to officer wellness.

Benchmark Management System® (BMS) offers comprehensive top-to-bottom management modules that capture all of an agency’s day-to-day operational data points in one location. Capturing training data with this tool can help agency leaders track which officers are due for training courses and assist in identifying candidates for “train the trainer” methodologies.

Our Work in Progress and Reflections on Policing in the Past

Posted on by Amy Vracar

The following is part 2 of 2 in our IACP Leadership Series conversation between Benchmark CEO Ron Huberman and Thomas Eicher, Executive Director of the Office of Public Integrity and Accountability, New Jersey Office of the Attorney General. In this entry, Mr. Eicher discusses new polices his state is implementing to improve transparency and accountability, moving toward a more effective, evidence-based early intervention system — as well as sharing his thoughts on various policing reforms over time and the need to look at the criminal justice system as a whole.

RH: Tom, let’s continue our discussion on police reform policies being initiated or expanded upon in your state of New Jersey. Your novel concept of tracking and reviewing use-of-force incidents statewide by assigning a county prosecutor to work with every agency is breakthrough. What else are you implementing?

TE: Sure. The other thing we looked at was transparency, and we issued an updated body-worn camera policy that requires disclosure to the public within the completion of the initial investigation, typically 20 days for a police-involved shooting. We have expanded that to not only body-worn cameras, but dash cams and private cameras that might inform the public what really happened during a particular incident.

We issued an amended policy about impeachment material for officers. Even though it’s been the law for a long time, we had not had a statewide policy that really set out in any detail the requirements to track and make available to defense counsel and defendants impeachment material about the officers who were testifying. We put that in place. We, again, pushed that on the county prosecutors a bit to put them at the frontline to gather that information and
make it available.

We thought these two updates were important reforms to strengthen public trust and heighten transparency. We also continued and emphasized our resiliency program where we looked at trying to help officers who needed assistance because of a problem in their life – such as a drug or alcohol issue –making it easier for them to reach out and get help without incurring disciplinary action.

Finally, and this is a work in progress, we are looking at how we can improve the early warning system directive that we have, and move it more towards an early intervention system — improving the capacity, either on a statewide level or within the individual departments, and the ability to implement this updated system in a way that really facilitates training, as opposed to discipline; or interventions early rather than later so that you don’t have to wait until something really goes off the rails. And importantly, using data rather than hunches about what actually is effective — as well as what you should be measuring and looking at.

That’s true for all we’re talking about . . . I think that the focus on using the data that’s available is really key. It’s what makes this multi-dimensional reform effort somewhat different than some of the earlier reforms that didn’t have that ability to gather and analyze the data — and help use that data to inform policies.

RH: You know what’s interesting, Tom? It’s that is precisely what I’ve advocated for in terms of what I’ve seen. In the ’50s we had the professional model policing: 911 came to take everything over, and everyone’s in uniform and random patrol — and it’s really what is even today the bedrock of policing. Through the ’70s, we started to see problem-oriented policing, which was followed by community policing. Community policing was concurrently overlaid with predictive policing,  joined by Compstat policing in the ‘90s, leading us up to this point in time.

What’s different to me at this point in time – and that you’ve articulated as well – is the fact that for the first time in the history of law enforcement, we have data and research to actually say, “We no longer have to rely on the hunch and the goodwill of a street supervisor. We can systematize an understanding of a pattern and practice of problematic behavior in the early stages — before we have horrific incidents that really crush our profession every time they happen.”

Tom, let me just tap into your experience. You were a federal prosecutor for 30 years, with much work in civil rights crimes. Has there been a trend you can identify? Were there things that you were much more likely to prosecute 30 years ago and 20 years ago than today? And more to the point, if you will, what is the nature of problematic conduct in civil rights violations today versus 30 years ago — or is it really the same show?

TE: I think it’s pretty similar, honestly. But there has been a trend. The original cases I was involved with were more corruption cases. Police cases where drugs were stolen, money was stolen, drugs were planted, officers were on the take. Now, that was in Philadelphia; not to give them a bad name, but I was a prosecutor in the city at the time. We also saw that in New Jersey when I moved over here.

And then, whether it was because of focus or difference in conduct, the use of force over the last five to 10 years has become much more of a focal point. I think the public’s understanding of what is reasonable force for police to use has evolved. I think there was an era when the public’s attitude was, “Hey, if they committed a crime, they brought it on themselves and the police should do whatever they need to do to take care of this person.” They really didn’t care what happened to him. I think that’s changed.

I think even people who have committed crimes are being seen more as a person. And even though they deserve whatever punishment the system will result in. It shouldn’t be at the hands of the officers. I think the public’s definition of reasonable force, which is always at the bedrock of even the constitutional law, has changed. I think it’s evolved. I think the public is expecting and asking for more restraint when it can be safely done.

I think that’s a change. I think that’s different. One of the challenges in prosecuting civil rights cases – especially those for people incarcerated and I did a number of those – is that a lot of jurors at that point were like, “Hey, they must’ve done something or they wouldn’t have been in jail in the first place. And so therefore, they don’t have any rights.”

Of course, that’s not the law, but that’s a very difficult climate to bring those cases into. I think the public sentiment has changed, in part maybe, because so many people know someone who’s been incarcerated or know somebody else who knows somebody. It’s not the stigma it used to be. I think there is a more humanizing of people, and an expectation that police will deal with effectively, but fairly, with everyone they interact with.

RH: No, it’s interesting. What do you think has brought the public around? Do you have a sense of why there’s been such a shift in how it’s perceived?

TE: I think it’s an accumulation of the incidents that we’ve seen. And I think it’s the starkness of the George Floyd situation. It’s also a recognition that there is a general perception – and we can argue about whether it’s true or not – but there’s a general public consensus, I would say for the most part, that law enforcement does not always act equally with every citizen. That there is different enforcement based on race — or based on assumptions about people.

I think that the public, for the most part, is sympathetic to that. I believe that’s a big change. And I think it goes beyond the community that’s being most directly affected — and has now broadened to others who were not part of that community, but feel that changes have to be made to make sure it’s not happening. So, I think that’s a big difference. I also believe that police are open — they want to do a good job. My experience has been that police don’t want to be the bad guys.

There are some bad apples, of course, but most police want to do a job effectively, want to do it fairly, and want to see themselves in that light . . .and I think they should. We have to give police the tools, the policies, and the training to do it. I think we didn’t do that.

To just anticipate a little bit of your question or what you mentioned about community policing, I think the Compstat model overran community policing. By focusing on data to see where crime hotspots were, and then deploying resources in that way, what it did is it tended to be almost a self-fulfilling prophecy. Less affluent neighborhoods, which in the major cities tended to be more minority, got much more attention from the police. So, then there were more arrests . . . and those arrests lead to more arrests. I think while it suppressed crime, it also created a really negative interaction with the community that I think has to be undone — through the community policing aspects of where you’re interacting, not just in a bad context, but in a normal everyday context.

The data that led the Compstat reform was effective in a way, but it undermined that community relationship in a way as well. I’ll give you an example: I won’t say the name of the case, but it involved the investigation of a fatal police encounter. The citizens that I spoke with about it said, “the police are always here harassing us. They’re in our neighborhood and they’re just always trying to catch us on some little things so they can stop us, try to search us, and see if they can find something.” I said, “All right. I understand that perspective.”

I talked to the police officer and I said, “What were you doing?” “We were on directed patrol”, he replied. “What does that mean?”, I asked. “We were in a neighborhood, a high crime neighborhood trying to catch them doing something like running a stop sign, so we could stop them and try to catch them with something”, he responded. They were both talking about exactly the same thing. The police thought it was highly effective law enforcement, and the neighborhood thought it was a means of oppression and being picked on.

It was interesting to see that the very same description of it almost leading to very different conclusions. I think both of them have some merit, but I believe if you’re only focusing in on one, and not the other, you’re going to lose the big picture. I think that’s what happened with Compstat.

RH: What’s so interesting, in my personal experience when I was a Chicago police officer, CAPS – which was the big Chicago police community initiative in the mid-’90s – was a major focus concurrent with Chicago’s version of Compstat. These initiatives were living concurrently — or trying to live concurrently. I think both had different success outcomes and both negated each other at some level.

What worries me a little bit about the current chapter of police reform, Tom, is the defund the police movement which I’m going to argue is not about funding per se, but just people being punitive by being in support of taking money away from the police. There’s an argument to be made that we should ask the question, “Who is the best person or group to deal with what situation?” I don’t think anyone’s going to pretend a police officer’s mental health training impacts a situation the way a mental health worker’s experience does. But to the degree that we peel the police away from humanizing interactions – giving that job away to other people – and leaving the police only to deal with crimes alone, we’re going to lose a certain humanity in all of this that could cause its own issues.

Tom, I’m going to close up with just a few questions. All of us who care a lot about the profession of policing and want to see it continually professionalized and elevated, we worry about democracy. Stick with me for a minute. There’s a whole body of political science that advises, “To the degree that people have faith in the systems of justice.” It’s not just the police . . . but police, courts, due process, etc. I believe when there’s a high level of public confidence, you see very stable democracies.

When you have a low level of faith in the systems of justice, you tend to see very weak democracies. If you look at South America, where there’s unbelievably low levels of confidence in systems of justice, you see democracies turn all the time. Very unstable governments. Well in the United States, much more so recently, folks’ faith in the systems of justice is deteriorating at a rapid pace. If you believe the work – you could say that’s a proxy to the health of our society, we should all be extremely worried about these reform efforts and building the trust.

Tom, what do you think we need to do to restore faith in policing, make it the honorable profession that it should be, and in many cases is, to the average American?

TE: I think that’s a really interesting question and it’s not one that a lot of people are focusing on right now. Part of it is, we require the police to do everything. We release people from the large mental health institutions and put them on the street — and the police are the first respondents, so that’s one.

Second, police also are saddled in some ways with the overall criminal justice system. Here’s what I mean by that; maybe I shouldn’t say this, but in one of the police departments that I’m involved in looking at, what we found was that African Americans had much more higher rates of arrest than Caucasians — and that’s obviously troubling. When we dug down a little more, what we found was, a lot of that difference can be explained by bench warrants out for individuals. They’re pulled over for speeding and they have a bench warrant. Well, if they have a bench warrant, the officer is going to arrest that person. They can’t ignore that warrant; It’s there, they’ve got to enforce it. What I mean is police are doing their job, but that can result in a lot of negative feelings by the community.

What do we have to do? We have to step back as we’re policing and not just focus on policing, but look at the criminal justice system at large. Is it really appropriate to have so many bench warrants for basically economic failures? You didn’t pay a fine, you didn’t pay the restoration fee on your driver’s license, you committed a crime, and now we’re going to tack financial penalties on top of it. So, a lot of that, as we saw on Ferguson [Missouri], is underlying a lot of the discontent with the police. The police are the face of that system that’s really, at some level, arguably oppressive to the people.

Not that they didn’t incur the fine, not they didn’t double-park or over run their meter — but the cumulative effect of it is, it creates this enormous negative energy between the people and the government. I think we have to step back. There have been those efforts by the Chief Justice in New Jersey and others to look at, “Is this the right way to do it? Should we be arresting somebody for an old parking ticket from a couple of years ago? Are there better ways to resolve that?” So, I think that’s part of what we have to do, is we have to help the police by taking a look at the big picture, at the whole criminal justice system, to see if we can do it in a more efficient and better way — and a more humane way. I think we can.

We’ve seen that in some of the re-entry efforts around the country that – once somebody’s served their time – it’s in everyone’s interest to see them succeed and to knock down barriers to that success. That’s just good common sense, because if you don’t do it, you’re going to end up with another person cycling through the system. I really do think what we have to do is not limit our focus to the police, but broaden it to the criminal justice system as a whole. And that requires some really fundamental discussions about what direction we want to go.

RH: Yes, I know. I’m so glad you brought that up, because I agree. There’s a big picture piece here and the micro-focus on police ultimately will not solve this problem; it’s bigger than that. We’re grateful for your service to our country as a prosecutor within the State of New Jersey — and everything that you do to elevate policing.

This interview from October 2020 has been edited for clarity.

 

The Importance of Establishing Tone — and a Transformative Way to Approach Use of Force Statewide

Posted on by Amy Vracar

The following is part 1 of 2 in our IACP Leadership Series conversation between Benchmark CEO Ron Huberman and Thomas Eicher, Executive Director of the Office of Public Integrity and Accountability, New Jersey Office of the Attorney General. In this entry, Mr. Eicher shares his belief in the importance of police chiefs setting the appropriate tone, expectations and sense of professionalism with the officers in their department — including the novel concept of assigning a county prosecutor to work with every agency.

RH: Tom, we’ve been talking to other leaders in the field about a variety of topics related to police reform. Let me start by asking a really broad question: Do you feel, at this moment in police reform in American history, that this is different in terms of the historical reforms that have occurred in policing — is this a pivotal point in time, or is it just another chapter?

TE: I do think it’s pivotal, and I think it’s different because it’s more broad-based. The prior reforms that I’ve been involved with and seen have been in response to specific incidents, and they’ve been top-down. But this one is really from the bottom up. This is really broad-based, involving large segments of the country: young, old, black and white are all engaged — and all want to see a difference. In my discussions with police officers and chiefs, I think they get it. However, police can be defensive – and considering some of the things that are being said – I think police take issue with the criticism . . . and rightly so.

I believe everyone I’ve talked to understands that – right or wrong – police have to respond to the public sentiment, because without public support they’re not going to be able to do their jobs. I think it is a challenging time because I feel some of the rhetoric is really out there. But I think police have to understand that this is their opportunity to be part of that process because change is going to happen. One of the concerns that I have is that as well-meaning as it is, people from the outside who don’t have an in-depth understanding of law enforcement, or background in the field, can try to come up with simple solutions — but the issues are more complicated than that.

RH: I agree. And I certainly worry about some of the past reforms because at times, from my perspective, they have seemed to dehumanize the police. Meaning they have not taken into full account all the day-to-day “stuff” that enable police officers to engage in thoughtful ways. Tom, let’s say that you were to wake up tomorrow, you’re a police chief — and you were giving yourself advice from someone who’s accountable for public integrity in the state of New Jersey: what would be the top thing you would advise a police chief must get right?

TE: I think it’s really not one thing because everything interacts. One thing I would say is, the chief has to set the tone for the department. It’s not a policy, or a practice even, it’s really just that the tone of the department has to be set by the chief, along with the expectations. What I would also say is that police officers need to understand themselves as professionals. They’re there to serve the public — not get down in the fray with the people that are breaking a law, but rise above it.

Obviously, police have to use force at times, they have to use force to do their jobs, but chiefs should be expecting more of the officers under their command. How do you do that? I think you set the tone with it, you be clear about what your expectations are . . . you develop written policies that set forth those expectations, you provide the training to implement the policies, and then you hold people accountable. Not that you’re going to create a sacrificial lamb, but if you intercede early – before things go really off the rails – then you can avoid those really bad incidents.

I think setting the right tone, letting your officers know you appreciate them and you have their back . . . but you’re going to demand and expect a level of professional engagement. It’s little things; like in some of my work, I’ve noticed the officers who are quick to swear or confront a potentially dangerous person are also those who are slipping over the line at times. I think the right tone and approach is part of the professionalism. I believe it goes across the board that the message to the officers has to be — you don’t stoop down to the level of some of the persons who may have committed a crime, but you rise above it and you expect more of yourself. The appropriate tone from the top is really critical.

RH: I’m in total agreement when it comes to early intervention and getting in front of inappropriate behavior. Tom, let’s talk about your role a little and what you see as the role of the state. Certainly, from my perspective as an observer of police policy and reform, the state of New Jersey is in front – almost more than any other state that we’ve seen – as part of the attorney general’s excellence in policing initiative. Can you share the basic framework of that initiative, as well as the logic behind that framework? How did your team come up with it? I think it’s such a compelling story for the country in terms of what you’re doing in New Jersey.

TE: Sure. Not to make it too personal, but I was a federal prosecutor for over 30 years. One of the things I did as a federal prosecutor was investigate and prosecute civil rights violations, including those propagated by police. When the Attorney General asked me to come work with him, I said I would do it as long as I got to be involved in police reform. Because what I realized was trying to change the relationship between the police and the community through occasionally prosecuting a really bad apple, it’s not going to really create the kind of reform that I thought needed to happen.

I agreed to come and set up this unit and run it for the Attorney General — I didn’t have to convince him. He was completely on board and said, “Let’s look at the big picture and see what we need to do.” This was before George Floyd, since I got here in 2018 and worked through the end 2019, we put together a series of reforms. We were convinced – and I am as well today – that it’s not one thing. There’s no silver bullet. It’s a series of things.

What does that include? It includes a functioning Internal Affairs and IA disciplinary process. We issued some new guidance and got the county prosecutors involved. They’re typically called district attorneys in many jurisdictions — more involved in reviewing police departments and what the police departments are doing. It requires more collecting of data about various outcomes, so that the public and county prosecutors in our office can look at data collected and say, “Why is it that nobody’s ever held accountable for a civilian complaint? Why are none of your excessive force complaints ever found to be justified?”

That piece of it – improving the Internal Affairs process – is absolutely critical because you don’t want to wait until something really, really bad happens that requires you to look at a criminal prosecution. Therefore, we also looked at that as well. Every police shooting in New Jersey is investigated — and we have the luxury, unlike most states, that New Jersey’s Attorney General is the chief law enforcement officer for the state and can issue directives and policies that apply to every law enforcement officer in the state. That’s a very robust power.

He’s also not elected . . .so that also gives him the freedom, as long as he has the support of the Governor, to institute policies without regard to the election blocks. We looked at that. It’s one of the things we did across the board: we investigate every fatal shooting and review every non-fatal police shooting in the state of New Jersey. Our office does that. It gives us an across-the-board look at what’s happening — it uncovers the circumstances under which things go off the rails and things go bad.

RH: What would you say are the pros and the cons of charging the county prosecutor with reviewing things such as a pattern of IA in a local jurisdiction? It’s certainly not a common model . . . where it’s outside of a specific incident. How are you finding that it’s working? Would you recommend other states consider it?

TE: Because of the COVID-19 crisis, although we issued the policy in December of 2019, it didn’t go into effect until August of this year. Then we had to train up all 21 county prosecutors in New Jersey, so it’s early in the implementation phase. So I can’t really tell you how well it’s working at this point — we have 550 individual police departments in New Jersey. For us, to try to monitor and audit on a large scale would be impossible. It’s even hard for the county prosecutors, some of whom have over 70 municipalities in their jurisdiction. We’ve asked them to at least take a look at it. The idea is if you know somebody’s looking over your shoulder, you’re going to be more likely to take it seriously for fear that you’re going to be called on the carpet.

One of the things we’re looking at doing in our new use of force policy is requiring that every chief sign off on an annual report to the prosecutor’s office about the use of force by their department and requiring them to analyze and sign off on every use of force at some level. By requiring that they focus on it, it hopefully will encourage that the chiefs realize this is important. There are a lot of important things, but this is very important. It’s got to be looked at.

I believe the IA process is challenging, in part, for some reasons that folks have noted recently in the news: that even if the chief imposes discipline, it’s then subject to arbitration as well as appeal to the courts. This process can undermine the certainty of the discipline. We need to find a balance that allows the chief to exercise reasonable discipline, subject to due process, but does so in a way that’s swifter and more predictable. Right now, I think that’s one of the gaps we have in our system.

RH: If I understand it right, you guys [New Jersey] are one of the only five states in the country who don’t have a decertification process today. Is that correct?

TE: That’s correct.

RH: Not saying it’s super effective, but that it is not a tool if someone hops around or if there are other problems. It’s not available as a tool today to try to get in front of some issues.

TE: That’s exactly right. We have a Police Training Commission that does the initial training of officers. One of the things that was part of the excellence in policing was to have them make a decision about whether they recommend a licensing. And earlier this summer, they did come out unanimously in favor of a licensing or certification regime that would involve decertification as well.

What that’s going to do is put a floor on the process, and allow a statewide look at setting minimum standards — not only to become a police officer. In the past, there has not been even psychological testing that was required before somebody could go to the police academy. With this change, minimum standards would be there, which is important.

It would also likely require continuing education and training, keeping up with use of force policies, along with other policies that the Attorney General issues.

It will create a mechanism to weed out the really bad apples. One of the things we did in the Internal Affairs reforms we put in place last December was to require every department that hires a police officer from another department to check the Internal Affairs records for that officer. Now, they’re not required to act on them. They could look at the records and say, “Gee, this person has five sustained uses of force, but I’m going to hire him anyway.” But that’s where the licensing comes in as a backstop if you see a pattern. Once it’s set up, it will enable a really robust licensing or certification regime.

RH: It sounds like we will all be watching how effective it is by having the county prosecutor play that new role, right? It could be a model for the nation. I’m sure we’ll learn the pros and cons to each piece of this reform, but sounds like you’re moving the ball forward.

Let me get a chance, Tom, to share some of those other reforms that you guys are doing at the state level?

TE: Sure. One of the things we’re doing is requiring that every use of force incident is reported in a statewide portal. Every time a police officer uses force in New Jersey, they’re required to fill out a detailed account through an online system. The report is then shared with the attorney general’s office, the chief of the officer’s department, and with the county prosecutor. We will have a system that’s tracking detailed information about all uses of force across the state.

We will learn when are they occurring…what are the circumstances under which they’re occurring? What’s the type of force used? Which force ends up resulting in injuries? What’s the resistance level that the force is being used against? These reports will provide a detailed picture that’s going to allow the chiefs to look at use of force among officers. Importantly, in larger departments, chiefs can look at trends that may not be apparent just from anecdotal review. It also allows the county prosecutors to look at those departments and say, “Why is it that these two similarly situated departments have wildly different amounts of force being used within their jurisdiction?”

All this tracking data will allow the county prosecutor to sit down with each chief and talk about what’s happening in their department: What are the reasons for use of force actions . . . there may be good reasons or there may not be. I think this process is really exciting — it’s going to lead to not only more effective reform, but by the same principle, if you know what you’re doing is going to be reported and reviewed, you’re going to be more careful about it. You’re going to be more thoughtful about actions taken.

Police officers, I hope, will always use force when it’s required and necessary for their protection and for the public’s protection. But I think they’ll be more judicious and conscious about it if they know they have to fill out a detailed report, and someone’s going to be looking at that report to see if it met the policies and procedures set forth by the department.

RH: Yes, that would be very consistent with the work that we’ve seen in the research across the country. Where we can’t speak to whether measurement changes behavior, we can certainly speak to the fact that what you described earlier rings true with national research — which is this confluence of what you brought up about . . . I’m going to call it ‘broken windows theory’. If it’s the officers who are swearing who may also be more likely to be involved in using force earlier than called for, our research shows that if you are struggling in one area, you’re going to be struggling in multiple areas — it’s usually not isolated.

Being able to look at use of force patterns could be part of understanding how all factors work together. It makes tons of sense and congratulations. You guys [New Jersey] are, from our research of all 50 states, the first state to not only require but actually have it executed statewide. Benchmark is lucky to be part of the story and we’re happy to be able to serve where we can.

Don’t miss Part 2 in our post Our Work in Progress and Reflections on Policing in the Past, where Mr. Eicher discusses new polices his state is implementing to improve transparency and accountability, moving toward a more effective, evidence-based early intervention system — as well as sharing his thoughts on various policing reforms over time and the need to look at the criminal justice system as a whole.

This interview from October 2020 has been edited for clarity.

Technology and 5 Other (Potential) Sources of Complexity in Law Enforcement

Posted on by Bob Tulini

Policing has always asked its officers to make difficult decisions about the nature of law enforcement. But three decades of advancements in police technology introduced a new level of complexity to those choices.

Most police executives rose through the ranks fully expecting – perhaps even motivated – to tackle systemic barriers to effective law enforcement. However, few could have anticipated the rapid changes to the public perception of policing’s role in society and the national spotlight that’s been directed at it for most of the 21st century. Law enforcement now requires those in leadership roles to make many of the same technologically complex decisions traditionally reserved for executives in other professions.

Data Centers, cloud technology, cybersecurity, smart cities, chatbots and A.I., virtual reality, IoT, V2X, predictive analytics: a police executive needs to be comfortable with this terminology to make effective decisions about operational and technological investments for their agency.

What Your Officers Think about New Technology

A recent report published by Accenture surveyed hundreds of law enforcement professionals globally to develop a hypothesis for what policing could look like in the future. While the mission hasn’t changed – defined in the report as “protecting the public, preventing crime and keeping the peace, while maintaining the public’s trust” – effective service depends on agencies developing “a more agile workforce and rely[ing] on an increasingly expanded ecosystem of partners.”

Of the officers interviewed, 76% believe the demand for digital skills will increase over the next three to five years. 75% expressed a belief that digital skills will be required and demonstrated an interest in acquiring those skills.

But officers don’t decide what technology they use. That’s up to the supervisors and executives.

Your officers expect their leaders to quickly and accurately assess the implications of new technologies; to understand how and why a technology came to exist, in what ways it’s likely to evolve, and whether your officers will benefit. Additionally, you have to anticipate your community’s perspective as stakeholders impacted by the adoption of new technology.

Sources of Complexity in Law Enforcement

Most readers have more computing power in their pocket or strapped to their wrist than what was available to police through most of the 20th century. It’s relatively easy to point to the upside of new technology, but that upside is often accompanied by higher expectations and increasing operational complexity.

First police vehicle, Akron, Ohio, 1899

According to some researchers, complexity is introduced to policing via six channels. In recent decades, each has gone undergone a rapid evolution, at times through an expanded mission scope or bringing new stakeholders to the law enforcement table.

Tasks

When the average person thinks of police work, they possibly think of deterring petty crime like theft and tagging or solving crimes like homicides and burglary. But the scope has expanded greatly in the 21st century. Now police are asked to account for terrorism, immigration issues, cybercrime, and escalated narcotics work involving deadly opioids.

Instead of reactive deterrence, police are expected to proactively deter crime. This means using tools and methodologies to anticipate crime before it happens and introduce a police presence into the area where it’s projected to occur. Because environment plays such a fundamental role in proactive policing, officers now have to wrestle with social issues that were previously outside their purview.

Public Demands

We cover this topic in depth here and here. Whereas historically law enforcement took their cues from leadership and occasionally politicians, now there is no shortage of perspectives on how police should operate in the 21st century. Communities increasingly want a seat at the table and a say in how they are policed. Which makes Community Engagement a critical part of any police strategy.

Strategies

Until recently, police worked by patrolling in squad cars, responding to calls as needed, and investigating reported crimes. That’s a tight loop of accountability and responsibility. However, that’s expanded to include overlapping strategies like Broken windows, Community-oriented policing, Hot-spots policing, and Intelligence-led policing.

Most agencies will find that a blend of these approaches is the best fit for their community and officers. However, each strategy entails new specializations, new ways of thinking, and often new technology.

Technology

The duty belt used to hold your baton, handcuffs, a firearm, and two-way radio. Now you’ll find TASERS, Mobile Computer Databases (MCDs), body cameras, and pepper spray. Beyond that, new technology is useful at departmental level as well. Leveraging advancements in overall computing power, agencies are able to take advantage of CCT, automatic license plate readers, and social media to keep communities safe.

There are also technology applications to empower managers to better serve their officers. Advanced analytics can help agencies with good data hygiene to identify patterns in officer behavior that could warrant intervention. At Benchmark, we use powerful models developed with the University of Chicago to power police force management, early intervention, and officer support.

Accountability and Resources

According to the research, the U.S. investigated the “patterns and practices” of over 50 law enforcement agencies since the early 90s. Half of these investigations led to consent decrees instituted via judicial supervision.

New requirements and evolved responsibilities bring new demands on already limited resources. They also require new ways of thinking, and new specialized knowledge (e.g., cybersecurity). At the same time, resources aren’t necessarily growing in turn.

It’s a challenge to identify and evaluate the varied ways in which these channels interact with one another to create additional complexity. While technology might be a source of complexity in some situations, technology can also solve it.

Technology as Source and Solution

This is why your technology decisions are so important. Though it’s been identified as a channel that introduces complexity, Police Technology is a broad category. Its spot on the list is partially due to its categorical breadth compared to the days of the truncheon, whistle and lantern.

Source: Walton, H. D. “Some Recent Advances in Police Technology.” (1982)

However, contemporary police technology extends beyond the tools and techniques you use in the field. While the introduction of body-worn cameras, TASERS, Mobile Computer Databases (MCDs), automated license plate readers (ALPRs) and DNA analysis help police manage crime, on their own, they don’t provide much insight into the overall effectiveness of police.

Useful Guides to Navigate New Terrain

Police technology needs to perform for an agency under volatile, uncertain, complex, and ambiguous (VUCA) conditions. Part of fully using new technology is understanding its why. People go on auto-pilot when it comes to upgrading their phone or acquiring some other shiny tech, but a different mindset is needed for evaluating technology for work.

Luckily, choosing technology for your department is not an exercise requiring you to reinvent the wheel. Organizations like IACP and PERF recognized that police executives needed to develop a shared framework for choosing, implementing, and using technology.

IACP’s Technology Policy Framework (2014)

This framework sets out a set of “universal principles” to “be viewed as a guide in the development of effective policies for technologies.” This is useful for agencies concerned with data security, protecting the privacy of their officers, and conserving ever-tight resources.

From the report:

“Agencies should define the purpose, objectives, and requirements for implementing specific technology, and identify the types of data captured, stored, generated, or otherwise produced.”

“Agencies should articulate in writing, educate personnel regarding, and enforce agency policies and procedures governing adoption, deployment, use, and access to the technology and the data it provides. These policies and procedures should be reviewed and updated on a regular basis, and whenever the technology or its use, or use of the data it provides significantly changes.”

The whole framework is worth reviewing whenever you plan to invest in a new technology.

PERF and Lockheed Martin’s Law Enforcement Technology Needs Assessment (2009)

PERF and Lockheed Martin approached the question of police technology from a different perspective. Instead of guidance on policy, they set out to, “explore and document:

  • The operational needs of law enforcement agencies
  • The law enforcement perspective on technology—including beliefs about its effectiveness
  • A prioritized list of technologies to develop for law enforcement
  • Barriers to the introduction of technology in the LEA community”

Ultimately, the study found that adopting new technology depends on police executives who “understand the importance of technology and can link technology to the agency’s overarching strategic goals.”

Simple is No Longer an Option

The technology landscape is not likely to simplify in the coming years. If anything, police executives will have to become comfortable working and delegating within an ecosystem of complex technologies like artificial intelligence, virtual reality, the rapidly expanding Internet of Things, and unmanned aerial vehicles (UAVs).

There isn’t a single solution to offsetting the complexity introduced through technology, but there are solutions. Finding the right technology partners is a good first step after you’ve gone through the exercises to uncover what your agency needs in the context of its goals. After you’ve made a decision on a technology, you need to introduce it to your officers and champion adoption. We’ll address the typical pain points agency’s experience during an implementation and ways to avoid them.

Tips for Assessing Your Professional Standards and Early Intervention Systems

Posted on by Bob Tulini

Have you ever taken a self-assessment exercise? Often times the first thing you’re told is that there are no right or wrong answers – the objective is to become more aware of the totality of characteristics that comprise your identity. Makes sense, right? But unfortunately, that same principle does not apply to organizational self-assessment – there are right answers and there are definitely wrong answers.

Consider, for example, your current police force management provider. Are you getting the most technologically advanced solution possible? It should Tips for Assessing Your Professional Standards and Early Intervention Systemsbe fully automated and configurable to your specific needs. That includes meeting the specific polices of your agency, as well as your collective bargaining agreement. Also, is it scalable to integrate with other systems as needed – and holistic to provide you with the most visibility possible on your officer activity?

And what about your early intervention system? Is it preventative by nature – or does it feel like you’re always playing catch up? The true value of a professional standards solution should be to allow you to get ahead of issues before they become real problems . . . proactive vs. reactive, if you will. That means being able to intervene on off-track behavior before careers are jeopardized and issues are escalated to community and media exposure.

Something else to ask yourself – what role does research and analytics play in your police force management and early intervention systems? We know that across almost all professions and industries, evidence-based research and advanced analytics play a major role in human capital management. The same should be said for law enforcement, where we need the most reliable and actionable information possible to make informed decisions related to both on-track and off-track behavior.

These are just a few examples of things you should be considering, but you get the idea. Self-assessment can be easy when you know the right questions to ask. If you’re not sure, do a little bit of research – the information you need is out there.

You can also click here to take a quick, 6-question online assessment from Benchmark. Or, download the full assessment, compiled from our years of real-world policing experience, best-in-class technology expertise, as well as research and analytics background.