Reform Overview
Target: Commonwealth of Massachusetts

On the state level, the Commonwealth of Massachusetts can ensure impartial investigations in cases of misconduct and implement a process for de-licensing of officers found guilty of misconduct, discrimination and profiling, corruption, excessive use of force or brutality. Learn more about Pending State Legislation addressing these issues.

Reform Goals

  • Remove investigative and prosecutorial powers from local police departments and DA’s
  • Establish a Statewide Commission on Policing
  • Develop and implement a process for de-licensing – Peace Officers Standards and Training (POST)

Proposed Reforms

  1. Establish an Office of the Special Police Prosecutor to prosecute cases of police abuse and misconduct
  2. Establish a Statewide Commission on Policing
  3. Establish state-mandated Civilian Review Boards for local police
  4. Require statewide data collection on police abuse and misconduct
  5. Establish a state-level decertification process

1. Establish an Office of the Special Police Prosecutor to prosecute cases of police abuse and misconduct

Establishing an Office of the Special Police Prosecutor to prosecute cases of police abuse and misconduct will eliminate the possiblity of conlfict of interest by not having DA’s & Police Departments investigating and disciplining themselves. Independent prosecutors are needed because conventional city and county prosecutors are reluctant to bring charges against the same police officers they work with regularly and rely on for evidence in other criminal cases.

 Case Study: Wisconsin

In April of 2014, Gov. Scott Walker signed into law Assembly Bill 409 which has been called “The Bell Law,” this first of its kind legislation in the nation requires that an outside agency investigate officer involved deaths.

Analysis by the Legislative Reference Bureau

This bill requires each law enforcement agency to have a written policy, subject to the approval of the law enforcement standards board, regarding the handling of deaths involving a law enforcement officer. The policy must require a team of investigators consisting of three individuals, two of whom must be from an agency that does not employ an officer involved in the death being investigated, to prepare a report and provide it to the district attorney of the county in which the death occurred. The district attorney must give the report to the board for the review of officer-involved deaths, which this bill creates and attaches to the Department of Justice. The board must review the report to ensure it addresses all aspects of the death and may request further information from the investigative team. The board may then submit recommendations to the district attorney and may forward the report to any person responsible for the discipline of a law enforcement officer involved in the death.

Additional Resources

Status

  • The State Legislature has failed to take further measures to deal with investigating all crime and misconduct by law enforcement, however, H.1227 seeks to establish this process in the case of officer-involved shooting deaths.

2. Establish a Statewide Commission on Policing

The Statewide Commission on Policing would be assigned to the executive office of public safety for administrative and fiscal accountability purposes, but it shall otherwise function independently of the control and direction of the executive office of public safety.

This commission could be based on a similar Commission on corrections proposed in Draft Bill in Process by Kay Khan and would have comprehensive oversight of policing in Massachusetts including:

  • Policy
  • Training
  • Budget
  • Hiring
  • Discipline
  • Diversity

Additional Resources

Status

  • The State Legislature has failed to take further measures to deal with Establishing a comprehensive Commission on Policing, however, H.3479, seeks to study methods to prevent the use of undue force by police officers.

3. Establish State-Mandated Civilian Review Boards for Local Police

For a listing of civilian review boards across the country as of 2007 see Roster of U.S. Civilian Oversight Agencies

Civilian Review Works

From “Fighting Police Abuse: A Community Action Manual” ACLU Report | December 1, 1997 | section 4; goal 1

Civilian review works, if only because it’s at least a vast improvement over the police policing themselves. Nearly all existing civilian review systems:

  • reduce public reluctance to file complaints
  • reduce procedural barriers to filing complaints
  • enhance the likelihood that statistical reporting on complaints will be more complete
  • enhance the likelihood of an independent review of abuse allegations
  • foster confidence in complainants that they will get their “day in court” through the hearing process
  • increase scrutiny of police policies that lead to citizen complaints
  • increase opportunities for other reform efforts.

Why Is Civilian Review Important?

Civilian review establishes the principle of police accountability. Strong evidence exists to show that a complaint review system encourages citizens to act on their grievances. Even a weak civilian review process is far better than none at all.

A civilian review agency can be an important source of information about police misconduct. A civilian agency is more likely to compile and publish data on patterns of misconduct, especially on officers with chronic problems, than is a police internal affairs agency.

Civilian review can alert police administrators to the steps they must take to curb abuse in their departments. Many well-intentioned police officials have failed to act decisively against police brutality because internal investigations didn’t provide them with the facts.

Ten Principles For An Effective Civilian Review Board

  1. Independence. The power to conduct hearings, subpoena witnesses and report findings and recommendations to the public.
  2. Investigatory Power. The authority to independently investigate incidents and issue findings on complaints.
  3. Mandatory Police Cooperation. Complete access to police witnesses and documents through legal mandate or subpoena power.
  4. Adequate Funding. Should not be a lower budget priority than police internal affairs systems.
  5. Hearings. Essential for solving credibility questions and enhancing public confidence in process.
  6. Reflect Community Diversity. Board and staff should be broadly representative of the community it serves.
  7. Policy Recommendations. Civilian oversight can spot problem policies and provide a forum for developing reforms.
  8. Statistical Analysis. Public statistical reports can detail trends in allegations, and early warning systems can identify officers who are subjects of unusually numerous complaints.
  9. Separate Offices. Should be housed away from police headquarters to maintain independence and credibility with public.
  10. Disciplinary Role. Board findings should be considered in determining appropriate disciplinary action. The existence of a civilian review agency, a reform in itself, can help ensure that other needed reforms are implemented. A police department can formulate model policies aimed at deterring and punishing misconduct, but those policies will be meaningless unless a system is in place to guarantee that the policies are aggressively enforced.

Case Study: Tucson, Arizona

In Tucson, Arizona, a Citizens’ Police Advisory Review Board (CPARB) was incorporated into the city’s municipal code in July 1990. Composed of both civilian and police representatives, it has the authority to initiate investigations of controversial incidents or questionable policies, and other oversight functions.

Note: Tucson also has an Independent Police Auditor established as an external source to audit citizen complaint investigations

From: CITIZEN-POLICE ADVISORY COMMITTEE TUCSON, ARIZONA
(Created by the Tucson Code, Sec. 10A-86)

Functions of the Tucson, Arizona CPARB

  1. Consult with the governing body from time to time as may be required by the Mayor and [City] Council.
  2. Assist the police in achieving a greater understanding of the nature and causes of complex community problems in the area of human relations, with special emphasis on the advancement and improvement of relations between police and community minority groups.
  3. Study, examine and recommend methods, approaches and techniques to encourage and develop an active citizen-police partnership in the prevention of crime.
  4. Promote cooperative citizen-police programs and approaches to the solutions of community crime problems, emphasizing the principal that the administration of justice is a responsibility which requires total community involvement.
  5. Recommend procedures, programs and/or legislation to enhance cooperation among citizens of the community and police.
  6. Strive to strengthen and ensure throughout the community the application of the principle of equal protection under the law for all persons.
  7. Consult and cooperate with federal, state, city and other public agencies, commissions and committees on matters within the committee’s charge.
  8. The committee may ask for and shall receive from the Police Department, a review of action taken by the Department in incidents which create community concern or controversy.
  9. The committee shall have the authority, should it so desire, to use a specific incident as a vehicle for the examination of police policies, procedures and priorities.
  10. At the discretion and express direction of the Mayor and Council, assume and undertake such other tasks or duties as will facilitate the accomplishment of these goals and objectives.

Additional Resources

Status

  • The State Legislature has failed to address this issue.

4. Require Statewide Data Collection on Police Abuse and Misconduct

While the Federal Government has recognized the need for “Aaccurate and comprehensive data on the use of force by law enforcement data on police use of force” which “is essential to an informed and productive discussion about community-police relations” in the words of  Attorney General Lynch, Massachusetts does not require police departments to collect or submit data on misconduct.

Additional Resources

Status

  • The State Legislature has failed to take further measures to require data collection on police misconduct, however, H.1575 seeks to improve the collection and analysis of data relative to traffic stops, S.736 relative to traffic and pedestrian stop data and S.1263 relative to pedestrian stop data.

5. Establish a State-Level Decertification Process

police-decertification-logo-200pxIn Massachusetts Certification of Police Officers is handled by Municipal Police Training Committee (MPTC) which operates under the MA Executive Office of Public Safety. All new police recruits in Massachusetts must graduate from one of the municipal police academies, six regional police academies or the Massachusetts State Police Academy. All academies in the state meet requirements set forth by the Massachusetts Criminal Justice Training Council.

There is currently no process for an officer to be “decertified” or lose their license.

Certification and Licensing of Police Officers

From “Fighting Police Abuse: A Community Action Manual” ACLU Report | December 1, 1997 | section 4; goal 8

Every state now has procedures for certifying or licensing police officers. These require all sworn officers to have some minimum level of training. This was one of the advances of the late 1960s and early 1970s.

An important new development is the advent of procedures for decertifying officers. Traditionally, a police officer could be fired from one department but then hired by another. As a result, persons guilty of gross misconduct could continue to work as police officers. Decertification bars a dismissed officer from further police employment in that state (though not necessarily in some other state). Between 1976 and 1983, the Florida Criminal Justice Standards and Training Commission decertified 132 police officers.

Standardized procedures for state-level certification/decertification are a worthy goal to pursue. Be aware, however, that the state commission must have sufficient power and resources to investigate misconduct complaints, and must vigorously exercise its authority. And even if it has such power, certification/decertification is only one part of the comprehensive approach that’s needed to achieve meaningful police discipline.

Revocation of Officer Certification

From Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct? Saint Louis University Law Journal | Spring, 2001 | By Roger L. Goldman, Professor of Law, Saint Louis University School of Law and Steven Puro, Professor of Political Science, Saint Louis University

The most common state legislative and administrative approach for addressing police misconduct, which is largely unknown to scholars and the public even though it has been adopted by forty-three states, involves revocation of the officer’s state certificate or license n4 that is issued upon successful completion of statemandated training. As opposed to termination of employment by a local department, which does not prevent the officer from being rehired by a different department, revocation of the certificate prevents the officer from continuing to serve in law enforcement in the state. n5 A state agency, typically called a Peace Officer Standards and Training Commission (POST), n6 has the authority to hold hearings and impose sanctions against [*543] police officers n7 that have engaged in serious misconduct as defined in the statute or regulation. Known as revocation, n8 decertification n9 or cancellation, n10 [*544] this practice has the advantage of insuring that officers cannot continue to practice their profession in the state by suspending or removing state certification. It treats the police profession like any other – if minimum standards of performance are not met, the person loses the privilege of continuing in the profession. n11 Although the focus of this article is on misconduct in the course of the officer’s official duties, grounds for revocation encompass a wide range of activities, including off-duty misconduct. As is true for other professions, a sanction short of revocation is often provided. Florida, for example, provides for revocation, suspension or placement on probationary status for up to two years, retraining and issuance of a reprimand. n12 Except in the case of so-called constitutional officers who hold elective offices, such as sheriffs or constables, revocation applies to everyone – from patrolman to chief. And as discussed below, many state POSTs have jurisdiction over these elected officials. n13

Many of the states with the power to impose sanctions are doing so with increasing frequency. For example, forty officers had their certificates revoked in 1999 compared to one in 1993, two in 1994, and six in 1995. n21 The reasons included sex with arrestees or inmates, theft, third-degree assault and positive drug tests. n22 In Texas, there were twenty-five suspensions and thirty-three revocations in 1997, compared to 267 suspensions and 146 revocations in 1999. n23

Traditional remedies for police misconduct fail to address the problem caused by the practice of leaving the decision to hire and fire officers up to local sheriffs and chiefs. This often leads to situations where unfit officers are able to continue to work for a department that is unable or unwilling to terminate them. Even when they are terminated, these officers often go to work for other departments within the state. Although virtually every other profession is regulated by a state board with the power to remove or suspend [*546] the licenses or certificates of unfit members of the profession (e.g., attorneys, physicians, teachers), there has been a longstanding tradition of local control of police without state involvement.

Without a mechanism at the state or national level to remove the certificate of law enforcement officials who engage in such misconduct, it is likely that there will be more such instances of repeated misconduct. n31 Traditional [*547] remedies do not address the problem. For example, the exclusionary rule prevents prosecutors from using probative evidence seized from a defendant in violation of his Fourth Amendment rights, but it does nothing to punish the officer. n32 Likewise, criminal prosecution of officers is rare, and convincing jurors to convict is extremely difficult. n33 Administrative complaints against the police in front of civilian review boards have been equally ineffective because the department for which the officer works rather than an independent body usually conducts the investigation. n34 Finally, civil damage suits against police officers face the problem of juries, who tend to rule in favor of the police; even if the suit is successful, the officer is often judgment-proof. n35

Recognizing the need for a law that removes unfit officers from the profession, particularly those engaging in repeated misconduct, most states have adopted revocation laws; n36 four states have enacted such legislation since 1996. n37 The professional organization of POST Directors, the International Association of Directors of Law Enforcement Standards & Training (“IADLEST”), in its Model Minimum State Standards, recommends that POSTs be given the authority to both deny and revoke state certification for [*548] law enforcement and corrections officers. n38 The seven states without revocation authority are Hawaii, Indiana, Massachusetts, New Jersey, New York, Rhode Island and Washington. n39

Major problems with police practices, including racial profiling, brutality and use of false evidence, call into question whether police self-regulation can address these issues. When police officers overstep their authority, there is often a decline in public confidence that can diminish a department’s legitimacy. n49 In November 2000, the U.S. Civil Rights Commission wrote that “police misconduct remains an “incessant’ problem in the United States, and the failure to wipe out abuse and brutality requires wholesale changes.” n50 Revocation of police officer certificates can lessen the amount of police misconduct and should be adopted in those states without such a program.

Although logic may suggest a relationship between fitness to enter the training academy and fitness to keep the certificate once certified, without the authority to revoke a certificate, states will continue to differentiate between trainees and certified officers. Thus, the New Jersey Police Training Council upheld the dismissal of a trainee from a training academy for testing positive for illegal drugs after a mandatory drug screening, but held that it could not bar the individual for two years from law enforcement employment, concluding it lacked jurisdiction concerning the trainee’s future employment. n176 Noting that the Certificate of Completion awarded to recruit officers is not subject to revocation, the former executive director of the Massachusetts Criminal Justice Training Council stated: “The Council has no role in the regulation or enforcement of police discipline other than for student officers while enrolled in an academy.” n177

Opposition to revocation comes from a variety of sources. According to the Human Rights Watch study, “of the states we examined … without decertification powers, [it was] largely due to opposition from police unions.” n190 In some states, the ability of local chiefs to handle the matter without the need for state assistance has been given as a reason for the lack of revocation authority. For example, in the view of the Deputy Director of Training at the Massachusetts Criminal Justice Training Council, the organizational ability of the chiefs in that state would make it “extremely difficult for an officer to go from one department to another without prior knowledge of the officer’s fitness for duty.

A nationwide data bank for police officers authorized by Congress along the model of the National Practitioner Data Bank (NPDB), n216 which contains information about errant behavior by medical professionals, would allow states to share data about police officers’ misconduct. The International Association of Chiefs of Police (IACP) supported a bill, the Law Enforcement and Correctional Officers Employment Registration Act of 1996, n217 which would have established in the Department of Justice a registry listing all criminal justice agencies for which an officer had worked. Additionally, it would have reported the fact that the officer had his state certification revoked. With the federal government involved in the hiring of 100,000 new law enforcement officers under the COPS program, n218 it clearly has an interest in a system which would help ensure that officers it funds, or with whom these officers work, are not persons who are unfit for the job.

As law enforcement becomes more accepted as a profession regulated by the state, it is only a matter of time before all states will have the power to revoke the certificate or license of unfit officers, and those states that have weak revocation authority will strengthen it. It is ironic that this power already exists for virtually every other profession but not for police officers with the authority to arrest and use deadly force. The reasons why there has not been a public demand for state power to discipline police include: the tradition of local control of police, so that most people are unaware the state already is heavily involved in training and standards; the absence of public awareness of the kinds of incidents of police misconduct discussed in this article; the assumption that attempts to control police misconduct will hamper effective law enforcement; the belief that the problem of police misconduct is one that affects only minority and poor communities; the legislators’ fear that if they support revocation, they will be labeled “pro-criminal”; and the opposition of police unions who fear that the state will abuse the power. n235

No state assumes that the public interest is adequately protected by leaving the ultimate discipline of lawyers and doctors up to law firms and hospitals. Rather, state bar associations cooperate with state supreme courts to disbar unfit lawyers and state medical boards revoke the licenses of unfit doctors. Similarly, given the costs to our society of unfit police officers, the final decision of whether or not a person remains in law enforcement cannot be left up to local departments. There is at least as great a need for state POSTs to serve a function with respect to unfit police officers similar to that of state bar associations and medical boards with respect to unfit lawyers and doctors. Unfortunately, it often takes a tragic incident that results in a public outcry to get police officer revocation legislation enacted. n238 There is no excuse for the few remaining states without revocation authority to delay any longer in getting such laws enacted.

Additional Resources

Status

  • Resolve H.2192 seeks for a “Special Commission on Peace Officer Standards and Training” to study and make recommendations concerning the implementation of a Peace Officers Standards and Training (POST) system.
  • S.1256 seeks to develop and establish basic training curriculum emphasizing: crisis, de-escalation, and disengagement tactics and techniques; and ways to build community trust and maintain community confidence.

How You Can Help

Contact your State Legislators in support of the Pending State Legislation we have addressing these issues.