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The Conservative Case for Civilian Review

Tuesday, October 15, 2013

Promoting civilian review of police departments is in keeping with conservative values.

American attitudes about criminal justice have always crossed party lines. But a view existed, from the 1960s to the early 2000s, that can be fairly called the conservative position. Its main arguments are familiar: American cities are dangerous places; police protect us, in these cities, from crime and disorder; our officers must be given broad discretion to do their jobs and not be second-guessed or restricted; criminals should be incarcerated, even for non-violent offenses, for the sake of punishment and deterrence. The conservative view won adherents and elections for decades, as one might expect when crime rates were soaring and cities were seen as violent, frightening places. The result: larger, more militarized police forces, ballooning corrections budgets, mandatory sentencing laws, and incarceration rates exceeding all other nations.

As David Dagan and Steve Teles point out in a 2012 Washington Monthly piece, the conservative view of criminal justice  —  and its legacy —  fit uncomfortably with the broader conservative ideology. It is hard to reconcile broad police powers and mass incarceration with the movement’s general skepticism about government power. It was only a matter of time until the conservative view was challenged by conservatives themselves, or those identifying as right of center. This re-evaluation began with the religious right and their defense of prisoners’ rights in the late 1970s and 1980s. It was bolstered by right-of-center scholars and politicians raising alarm bells about recidivism rates and the high costs when ex-prisoners re-enter society without adequate preparation. In more recent years, a “Right on Crime” initiative was launched by the conservative-leaning Texas Public Policy Foundation as part of an effort to replace the old conservative view of criminal justice with one more in line with the movement’s principles. Supporters, including conservative activists Richard Viguerie, Ralph Reed, former Attorney General Edwin Meese, and presidential candidate Newt Gingrich, urge a cost benefit analysis of crime and punishment programs and a more carefully defined view of criminal behavior.

The days when police departments could claim authority to police themselves are over. The question now, for cities, is what form of oversight is best. Many police chiefs have embraced civilian review as an acceptable alternative.

Conservatives’ approach to criminal justice has clearly evolved. Manichean views of crime and punishment have lost much of their appeal. It is possible to be “pro-police” and “anti-crime” while objecting to failed policies and government excesses. A pro-law enforcement stance is compatible with an appreciation of individual rights — and even social service programs. But there is one area where conservatives have been largely silent in recent years. It is a natural area for them to champion given their support for federalism, accountability, and limited government. That area is civilian review of police practices. Some history is in order.

Conservative Opposition to Civilian Review

Civilian review boards were first put in place in the 1950s. Their function is the outside review of police departments, typically by non-sworn officers such as community volunteers, paid investigators, ombudsmen, and auditors. Civilian review takes different forms in different cities, but it almost always concerns citizen complaints against police — their intake, their investigation, and their resolution. It is animated by the principle that police cannot adequately police themselves: internal affairs units are not sufficient to hold officers and departments accountable.

In the early days of civilian review boards, conservatives did not give them much attention and the attention they have given them since has not been positive. Attitudes about civilian oversight split along conservative/liberal lines, with the former identifying it as incompatible with crime control and the latter urging it as a remedy for police abuses. A “Firing Line” episode from October 1966 called “Civilian Review Board: Yes or No” is broadly representative. In the episode, William F. Buckley questioned the need for civilian review in New York City in the run up to a referendum on the issue. He opposed a civilian role in the complaint process because it distracts from more pressing needs and weakens local officers. “We are up against a situation,” he said, “with which we have not successfully coped, mainly, the rise in crime . . . under these circumstances, what we need primarily to fasten our attention on is the necessity to catch criminals.” (In the context of the Harlem Riots two years earlier and rising crime rates, this position struck many as entirely reasonable. Civilian review went down in flames in a 63 to 36 percent defeat). Buckley ridiculed the kind of people chosen to sit on civilian review boards for their lack of knowledge and, particularly, their anti-cop agendas. “The radical introduction of the idea of the civilian review board” he argued, tends to be “a foot in the door in the way to politicize the police.”

Police professionals, furthermore, see the value of citizen review as part of a larger strategy of community policing. As a 2000 report from the International Association of Police Chiefs explains, civilian review entities can foster improved community/police relations.

The New York City civilian review board of 1966 was opposed by the Conservative Party, American Legion posts, and the John Birch Society. Fourteen years later, Democratic Mayor David Dinkins proposed a new board, and in light of high crime rates and police opposition to the board, Republican mayoral candidate Rudy Giuliani proclaimed it “bullshit.” Republicans abolished a review board in Rochester in 1970 and opposed the Philadelphia board in the 1990s. Over in the scholarly realm, Edwin Delattre’s Character and Cops, first published by the American Enterprise Institute in 1989 (and republished in six editions) envisions no role for civilian review in the context of police ethics. “Experience in such programs,” Delattre writes, “has not established the rightful place of civilian boards in addressing problems of corruption.”

This hostility was, perhaps, inevitable. Civilian review, in its early years, did have an anti-police orientation. Early review boards were designed to address anger over police conduct, particularly by black city residents and civil rights organizations. The first proponents of review saw many police officers as racist, criminal, and out of control, which put them in direct conflict with those advocating for more “law and order.” This was a showdown that conservatives won, at least in most American cities; civilian oversight bodies were few and far between up into the 1980s, and those that did exist were controversial and ineffective.

The New Oversight Industry

But times have changed, and conservatives’ early opposition to and more recent neglect of civilian review seem decidedly outdated. The boards have grown up, and the field has exploded. The National Association for Civilian Oversight of Law Enforcement (NACOLE) lists around 100 oversight entities on its website (there were three when Buckley taped his 1966 “Firing Line” appearance), and they exist, in some from or other, in around 80 percent of the largest American cities. With this growth have come professional standards, ethics codes, and other forms of maturation. Talk of social justice at a NACOLE conference is far less frequent than talk about getting the “balance” right between law enforcement and complainants. Indeed, the popularity of the “political” volunteer within the oversight profession seems to be waning; oversight is increasingly dominated by auditors, investigators, and ombudsmen with legal and law enforcement training.

Civilian oversight is less expensive and intrusive than federal involvement when it comes to identifying problems.

One of the central arguments against civilian review — that police can monitor themselves — has lost its relevance in the last two decades. Since the 1994 passage of the Violent Crime Control and Law Enforcement Act, the Department of Justice’s Civil Rights Division has had the incentive and authority to sue municipalities for unconstitutional policing practices. (Section 14141 of Title 42 prohibits governmental authorities or those acting on their behalf from engaging in "a pattern or practice of conduct by law enforcement officials" that deprives persons of "rights, privileges, or immunities secured or protected by the Constitution”). These suits, and the threat of these suits, have resulted in consent decrees and memos of understanding between cities and the DOJ mandating policing changes. The number of DOJ investigations, lawsuits, and agreements concerning police practices since 1994 is small — the Civil Rights Division’s website lists somewhere around two dozen — but they have had significant impact on local jurisdictions. Federal action (and the possibility of federal action) has produced a cottage industry of government experts and private consultants to enforce agreements or give advice about how to best avoid them. For example, Burbank’s police department has been the object of both DOJ and FBI scrutiny in recent years. The city council approved a contract in 2012 to pay superstar police consultant Mike Gennaco $180,000 over a three-year period to discourage further federal involvement.

The DOJ is not the only force driving oversight. As Charles Epp points out in Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (University of Chicago Press, 2010), private lawsuits against police officers and departments have a similar effect. Hiring an outside consultant to review and improve the local police department’s policies is now standard risk management practice. (Epp’s insight is that local officials often capitalize on the threat of private suits to implement reforms that they find desirable). In light of DOJ investigations, private actions, and cities’ interest in reform, the days when police departments could claim authority to police themselves are over. The question now, for cities, is what form of oversight is best.

Many police chiefs have embraced civilian review as an acceptable alternative. There is no evidence that local review boards deter federal investigations (indeed, most DOJ investigations occur in places where civilian review agencies are in place), but they can make them a little less painful. There is an increasing tendency at the DOJ to recognize a well-functioning review entity as a sign of policing improvement. Police professionals, furthermore, see the value of citizen review as part of a larger strategy of community policing. As a 2000 report from the International Association of Police Chiefs explains, civilian review entities can foster improved community/police relations. “In many cities, citizen review proposals are not negative in character but an outreach from the community to help departments respond objectively to difficult internal situations. Many citizens see civilian review as a positive link to their departments.”

The most useful forms of civilian review are concerned with department policies, procedures, and culture, since these are the things that influence officer behavior.

Civilian oversight is less expensive and intrusive than federal involvement when it comes to identifying problems. In cities such as Albany, review boards are part of the police department’s early warning system, helping identify problem officers and policies in their early stages. It is also less confrontational. Exact figures are hard to come by, but it is estimated that less than 10 percent of police complaints that are brought to civilian boards’ attention are resolved in the citizens’ favor. Civilian review is attractive to some police departments because it tends to vindicate their officers. For example, in my little city of Bainbridge Island, Washington the friendly new police chief, Matthew Hamner, embraces civilian review because, in his experience, review board volunteers are generally sympathetic to officers.

As civilian review has matured, it has expanded its concerns from particular incidents to broader policy issues. To borrow the language of Debra Livingston, who once served on the New York City Civilian Complaint Review Board (and now is a federal judge on the Second Circuit), civilian review is at its best when it is not backward looking and punishment driven. The most useful forms of civilian review are concerned with department policies, procedures, and culture, since these are the things that influence officer behavior. In Seattle, the newly established Community Police Commission doesn’t consider complaints at all. Its job is to provide input on federally mandated police reforms and police department policies. This aspect of civilian review has tremendous potential, as it provides city leaders with new policing ideas and practical insight into what is and isn’t working. It engages at least some city residents, in a meaningful way, in shaping policing priorities and objectives.

In light of the changed nature of civilian oversight in the last two decades and the recognition within law enforcement that it can be beneficial, it is high time for conservatives to adopt a more positive stance. Local civilian review (in contrast to federal review) provides voice to local preferences. It is very much in line with the conservative interest in preserving at least some forms of local government power. A police department in San Diego should be concerned with different issues than a department in Chicago — and civilian review is a mechanism to encourage these differences. There are many constitutional reasons why some policing standards are national, and many incentives exist (like federal grants) that nationalize police practices. But, as our founders understood, there is nothing more essentially local than the function of policing.

Local civilian review (in contrast to federal review) provides voice to local preferences. It is very much in line with the conservative interest in preserving at least some forms of local government power.

Conservatives should also celebrate civilian review because Buckley was right: civilian oversight does politicize policing. But this politicization is precisely what is needed if police departments, like other government agencies, are to be held accountable to the people they are there to serve. Thanks in part to the late 20th century rise in urban crime and the “tough on crime” approach that followed, too many police departments were given the leeway to amass power, which made them insulated, unresponsive, and unaccountable to the public. Civilian oversight has the capacity to reverse this trend, particularly through its policy function.

Civilian review is not a panacea for policing problems. It is still a relatively new addition to American politics. In the words of former NACOLE president Kathryn Olson, it is experiencing “growing pains” that should not be glossed over. But the solution is more attention and energy toward improvement. Civilian review needs friends if it is to have a meaningful and positive place in municipal government. Conservatives, with their allegiance to federalism, accountability, and limited government, are its natural defenders. Let this be the next step in the Right’s criminal justice reorientation.

Kim Hendrickson is the founder of Islanders for Collaborative Policing, a police watchdog group on Bainbridge Island, Washington. She is a former research associate at the American Enterprise Institute, and political science instructor at Olympic College.

FURTHER READING: Lee Harris writes “'It's Not About Crime, It's About Values'” and “Sympathy for the Devil.” Fred Siegel forecasts the future of the Big Apple in “New York After Bloomberg” while Rachel DiCarlo Currie analyzes Charm City in “Baltimore Confidential.” Michael Barone contributes “With Crime Down, the Nation Moves to Ease Get-Tough Policies” and “Crime Bankrupts Detroit, Public Unions Mug Two California Cities.” John Steele Gordon argues “Reforming the Law” while Robert Bate explains “Combatting Corruption.”

Image by Dianna Ingram / Bergman Group

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