Civilian oversight of the police is front and center in the state of New Jersey. The city of Newark had tried to establish its Citizen Complaint Review Board (CCRB), which granted the oversight body with subpoena power. The city was subsequently sued, and litigation went all the way up to the NJ State Supreme Court. In a nutshell, the state supreme court ruled that Newark’s CCRB in its current form, particularly having subpoena power, violated NJ state law. A more comprehensive overview of these events is provided here. As a result, there is a proposed bill, A4656, in the NJ Assembly’s “Community Development and Affairs” Committee. The full-text bill can be found here.
On Wednesday, March 17, 2021, I provided testimony for the bill. Those providing testimony were granted 2-minutes each, which is a woefully insufficient amount of time to discuss complex topics. I needed to amend my testimony to abide by the time constraints. If I had more time, this what I would have said:
“Thank you, chairwoman. My name is John Shjarback, and I’m an assistant professor of criminal justice at Rowan University. I’m a policing scholar and I’ve conducted research and published on issues of use of force and accountability. I’ve partnered with a number of law enforcement agencies to help them evaluate various programs, policies, and efforts. I’d like to spend my time talking about civilian oversight more broadly and I’ll refer to specific areas of the proposed bill and application in the state of New Jersey where I can. I’m here to offer support for Assembly Bill 4656 with a few cautionary notes.
Civilian oversight/review boards are necessary. In fact, it was discouraging to hear the NJ State Supreme Court rule that the Newark civilian complaint review board could not have subpoena power in the summer of 2020. Without subpoena power, such entities would be rendered useless. They would be symbolic in name only without any real power or bite to conduct worthwhile, independent investigations. Civilian oversight bodies across the country have subpoena power, and there’s no reason why NJ can’t be the same.
While civilian oversight is necessary and a step forward, I must caution that the mere existence of them is likely insufficient for the true police reform that most people are looking for. That’s because accountability mechanisms are not created equally and vary on spectrum on what The Policing Project at NYU School of Law calls “front-end versus back-end accountability.”
Front-end accountability includes strong policies and practices to create a culture of organizational accountability before things go wrong, while the back-end measures reflect after-the-fact, reactionary methods for holding individual officers responsible for their misdeeds. Civilian oversight can be best categorized as a back-end accountability mechanism, but perhaps their existence could have feedback loops to front-end accountability.
There is no “one size fits all” approach to civilian oversight. Models of civilian oversight bodies vary widely in structure, purpose, composition, and jurisdiction. Some have paid positions, whereas others have elected or volunteer positions; some have independent investigatory powers, while others simply monitor complaint investigations conducted by internal affairs units. Some oversight agencies have a narrow focus, exclusively reviewing complaints that citizens have lodged against officers, whereas others also handle officer complaints initiated by supervisors in addition to reviewing select critical incidents (e.g., use of force or officer-involved shootings). There are also oversight agencies that play a more pivotal role in reviewing, analyzing, and monitoring aggregate organizational policies, practices, training, and systemic conduct. They fall into three broad categories: investigation-focused, review-focused, and auditor-/monitor-focused.
The diversity of such models is a strength – given that each jurisdiction can try to match the organizational characteristics of a model to the needs and resources of their particular jurisdiction – but it also limits the ability to conduct rigorous evaluation research.
The proposed bill’s main strength is its subpoena power. This not only applies to compelling witness testimony, but also capturing other evidence from surveillance and CCTV footage.
In terms of weaknesses, however, the bill limits the civilian review boards in that they will only be investigating actions/events that enter through civilian complaints as opposed to broader efforts that investigate officer and supervisor complaints brought about against fellow officers as well as critical incidents (e.g., use of force, OIS). For example, in some civilian review boards officers and immediate supervisors can bring a formal complaint against a fellow officer for any host of reasons – such as excessive force, improper conduct, harassment - provided that it falls within the purview of oversight body. This may be done, either in lieu of or in conjunction with a formal complaint to Internal Affairs, due to fear of retaliation or a perceived lack of efficiency with the current Internal Affairs process.
The bill is also written in a way that each municipality will have the same exact structure (e.g., at least seven volunteer members appointed by the mayor or chief executive of the municipality) even though we know not every jurisdiction will have the same resources and organizational commitment.
There is also a point of contention in the bill as it is currently written that allows for the civilian complaint review board to conduct a parallel/concurrent investigation alongside an Internal Affairs investigation. The ability – whether that be the police department or a civilian complaint review board – to acquire evidence decreases after a significant period of time. Witness recollections of an incident are likely to diminish or they may lose interest in participating. Subpoena power is a powerful tool used to compel testimony and evidence from witnesses outside of the police department. Significant delays in the civilian complaint review board’s ability to compel CCTV (closed circuit television) and surveillance footage from businesses or private homes (think Ring and SimpliSafe doorbell cameras) may result in the loss of evidence that can used to inform the investigatory process.
I also have concerns about who will staff the civilian boards and the level of training that the members will receive. They must be properly staffed with adequate training into the frameworks to be used to evaluate complaints. There is already going to be an inherently adversarial relationship between departments and their respective civilian complaint review board. Police use of force is complex and decisions regarding the appropriateness of that force must be assessed using federal and state case law, the New Jersey Attorney General’s directives, and departmental policy. If those standards aren’t used and the civilian complaint review board makes a determination about a use of force incident that relies on public perception or a “community standards” model, then it will lose legitimacy in the eyes of officers/department (if it had any to begin with).
There’s also a section in the bill: “g. Notwithstanding any provision of P.L.1963, c.73 (C.47:1A-5 1 et seq.) to the contrary, all records made, maintained, or kept on 6 file by a civilian review board pursuant to P.L. , c. (C. ) 7 (pending before the Legislature as this bill) shall be confidential 8 and unavailable to the public while an investigation is pending, and 9 all personal identifying information contained in all records made, 10 maintained, or kept on file by a civilian review board pursuant to 11 P.L. , c. (C. ) (pending before the Legislature as this bill), 12 including in any reports issued pursuant to subsection f. of this 13 section, shall be confidential and unavailable to the public.”
I could be reading this wrong, but I do hope the final bill allows the civilian complaint review board to make these decisions/findings publicly available. Officers’ names and other personally-identifiable information should be redacted, but the findings/decisions/recommendations of each investigated case should be posted in an effort towards transparency. Many oversight bodies across the country do a great job with making such records available to the public on the Internet. The Office of Police Complaints for the Metropolitan Police Department of the District of Columbia is a prime example:
https://policecomplaints.dc.gov/page/complaint-examiner-decisions
Additionally, the civilian review boards proposed appear to be taking the form of investigator- and review-focused models as opposed to the auditor/monitor focused version, which is much more comprehensive that evaluates policies and practices rather than just individual citizen complaints against a specific officer(s).
Existing research, particularly from the National Association for Civilian Oversight of Law Enforcement (NACOLE), has identified 12 core elements of successful oversight agencies, at least to the extent we can draw such conclusions:
• independence,
• adequate jurisdictional authority,
• unfettered access to records,
• full cooperation,
• access to law enforcement executives and internal affairs staff,
• support of process stakeholders,
• adequate resources,
• public reporting/transparency,
• use of statistical pattern analysis,
• community outreach,
• community involvement, and
• respect for confidentiality.
The more of these elements that are present, the higher likelihood of success they’ll have. For example, more effective oversight agencies have been found to have adequate resources, subpoena power, and better access to records, executives, and internal affairs staff. Auditor-/monitor-focused models have been identified as being the most effective, followed by investigation-focused models, with review-focused models as the least effective.
It is important to keep in mind that success of the civilian review boards will likely be contingent on organizational commitment/resources of each individual entity. They are step in the right direction, but due the nature of them being more back-end/reactionary, they will need to be coupled with other much needed, often neglected front-end measures.
Thank you for your time and attention.”
The bill advanced out of the Community Development and Affairs committee (see below), and will be moving forward. I’ll be curious to see how it progresses and what changes/amendments are made to it. For those interested in civilian oversight more broadly, I encourage you to visit the preeminent authority on the topic: the National Association for Civilian Oversight of Law Enforcement (NACOLE) here.
