POLICING IN CENTRAL AND EASTERN EUROPE: Comparing Firsthand Knowledge with Experience from the West,
© 1996 College of Police and Security Studies, Slovenia


CITIZENS OVERSIGHT OF POLICE: PRIVATE DEVELOPMENTS IN THE WEST

Richard J. Terrill

During the 1970s and 1980s, several countries in the West introduced policies that permitted citizens to have an active role in the oversight of the police. What prompted the establishment of these policies was a failure to address instances of police misconduct. Before the 1970s, police misconduct was essentially handled internally within the police organization. Citizens oversight was an attempt to bring a degree of external oversight of the police.

This paper has essentially three objectives. The first is to explain the emergence of the idea of citizens oversight of police and to offer some organizational examples that have been developed in some western countries. The second objective is to consider why some western countries have developed citizens oversight schemes, while others have been unresponsive to the idea. The third objective is to consider the prospects for the development of citizens oversight schemes in eastern and central Europe.

INTRODUCTION

The principal objective of an international conference such as this is the sharing of information. While there have been a number of international conferences on policing, the title of this conference, "Policing in Central and Eastern Europe: Comparing Firsthand Knowledge with Experience from the West," suggests a particular significance. This conference was made possible, in part, because of some basic changes in the political climate that has swept across central and eastern Europe during the 1990s. As a result, some ideological barriers have been either altered or removed completely.

One issue that has received extensive coverage in both the popular press and scholarly literature is the decline in the prominence of communism as a political ideology. This has been accompanied by either an expressed interest in or the actual adoption and implementation of democracy as the political system of choice. Like other modern political systems, namely communism and socialism, democracy is capable of adopting several different forms. To illustrate, one need only examine the governmental structures and procedures of those states that subscribe to its basic tenets.

Because there are variations in the form and function of democracy, it stands to reason that diversification is also found in the application of the core ideals associated with a modern democracy. These ideals include: a recognition of the importance of government by rule of law, a goal to achieve equality among members of the whole community, an objective to establish for all members of the community a right to share in the conduct of the government, and a policy to delegate to representatives of the community the power and authority to control and limit government (see Laski, 1937 and Sartori, 1968).

The topic of my paper for this conference is citizens oversight of police: developments in the west. This subject is one that is especially instructive when discussing police in the context of a modern democracy. In fact, one can attribute the emergence of citizens oversight of police as an issue that is characteristic of a political and social system based on democratic principles.

CITIZENS OVERSIGHT

The term citizens oversight of police can have several uses. For our purposes, it is associated with efforts that either modestly alter or dramatically change the manner in which police departments handle complaints about questionable police conduct. Usually, alleged cases of police misconduct are the sole responsibility of the police department. The department receives the complaint, investigates the issue, and then determines an appropriate sanction, if the officer has not been exonerated.

Before proceeding further, it is important to clarify what constitutes questionable police conduct. The range is wide and the allegations are varied. They can include issues that are either clearly criminal in nature or suspected of being so, are possible procedural violations of a person's constitutional or civil rights, are viewed as inappropriate deviations from the policies and procedures of the department, or are simply inappropriate actions by a public employee.

The aforementioned method for handling allegations of police misconduct is generally viewed as an efficient process. This view is enhanced further when one examines the prevailing organizational philosophy of most police departments. By and large police departments are quasi-military organizations that subscribe to classical organizational principles as enunciated by such theorists as Max Weber (see Weber, 1947). When placed in the police context, such theories suggest that control must come from within the department to assure discipline within the rank and file. Hence, the most common type of control of police behavior is an internal one.

Critics of this approach are of the opinion that there is a need to establish an oversight scheme that is external to the existing internal method. At issue are the procedures, or the lack thereof, employed by police to assure accountability in the investigation of complaints, that have often been initiated by citizens, and in the forthright resolution of such allegations of professional misconduct. This issue raises a host of controversial questions about process: Who should receive the complaint; who should determine the authenticity of the charge; who should investigate the issue; who should adjudicate or mediate the case; and who should impose a sanction, if the officer has not been exonerated? These are the recurring policy questions that confront proponents of citizens oversight.

By way of background, it is important to keep in mind that citizens oversight of police is intimately tied to the issue of civil rights for minorities. Racial or ethnic discrimination or allegations of it are often at the heart of most movements to introduce a citizens oversight scheme. This has certainly been the case in those jurisdictions in the United States that have adopted the concept. 1 (Terrill, 1982 and 1991). It has also been a significant factor in other jurisdictions outside the United States, such as Australia, Canada, and England (Carter, 1979; Linden, 1982; Scarman, 1981; Terrill, 1980 and 1983). As a result, race or an ethnic factor has often further enhanced the controversy surrounding citizens oversight.

Finally, it is also important to acknowledge that other occupations or business endeavors, that are invested with a significant amount of power and/or trust, may also be in need of an external oversight scheme. Police have been singled out for such scrutiny because of the nature of their tasks, the powers deferred to the organization, and the significant discretion accorded individual patrol officers. This last factor is particularly important, for in both private and public sector organizations, there are few, if any, who grant as much personal discretion to line employees as does law enforcement. The gravity of that authority is enhanced further by the fact that these line officers are usually mandated to carry lethal weapons.

An American Example

During most of the twentieth century, police departments throughout the United States were given a good deal of latitude regarding their law enforcement and order maintenance techniques. This began to change in the 1960s, however. In fact the United States was probably the first western country to experience this shift, as the degree of latitude accorded police was subject to greater scrutiny. Various national commissions recommended internal changes within police departments, which represented attempts to strengthen traditional hierarchical forms of accountability (Terrill, 1988). The United States Supreme Court placed legal restrictions on the police, and other national commissions suggested methods of enhancing systemic forms of accountability. In spite 2of these efforts, a serious and at times significant problem continued to exist; namely, the inability of the police to assure the public that they were capable of policing themselves.

At issue was the internal process, referred to earlier, that was employed by many police departments to handle citizen complaints about questionable police conduct. Critics of the process suggested that an oversight scheme be established that was external to the existing hierarchial and systemic forms of accountability. Such a scheme could be characterized as an illustration of democratic accountability (Terrill, 1988). It is essentially based on the premise that irrespective of the public relinquishing to the police the authority to enforce law, the public retains the right to control the police if and when the need arises (Yates, 1982).

To illustrate how a citizens oversight scheme was developed and organized, we turn to the case of the city of Detroit, Michigan. The Board of Police Commissioners for the city of Detroit was created through a revision in the city charter in 1973. The charter called for the establishment of a five member board that was appointed by the mayor following approval by the city council. While the Board was given several responsibilities, two are of particular interest to us in the present context. They were to "[r]eceive and resolve, . . . , any complaint concerning the operation of the police department;" and to "[a]ct as final authority in imposing or reviewing discipline of employees of the department" (Detroit City Charter, Chapter 11 Police, 7-1103).

It was not until 1978 that the Board actually became involved in the handling of complaints. Initially, agreements had to be reached between the city and the various unions representing police officers. There also had to be a clear understanding between the duties of the Board and those of the chief of police.

The Board is composed of prominent citizens who serve on a part-time basis. The Board has an executive secretary who is a full-time employee and coordinates its activities. It also has a chief investigator and staff, who handle the investigative stages of the work.

The Board entertains three kinds of complaints: original, inquiry review, and appeals. Original complaints can be filed with the police department, the Board of Police Commissioners, the office of the chief investigator, or with other municipal agencies, such as the mayor's office. The complaints are then forwarded to the executive secretary who attempts to resolve the matter informally. If this is unsuccessful, then it is turned over to the office of the chief investigator. The initial investigation can be handled either by the supervisory staff at the precinct involved in the complaint or handled by the office of the chief investigator. The Board advises the chief of its findings. Disciplinary proceedings are then taken either by the chief or by a departmental trial board.

The Board of Police Commissioners may also be asked to review a completed investigation into a citizen complaint. This is referred to as an inquiry review. The rationale for such a review is based on the citizen's belief that an error or omission is present in the original investigation. If sufficient grounds warrant reopening the case, the office of the chief investigator will treat the matter as if it is an original complaint.

The Board also entertains two kinds of appeals. One appeal authorizes the office of the chief investigator to conduct a full investigation, because the original investigation contained errors or omissions. The other appeal deals with disciplinary actions that are being taken against a member of the department. Members of the department are disciplined by the chief of police or a department trial board. The Board has the authority to review the disciplinary actions on appeal. It can affirm the decision of the trial board, set it aside or reduce the penalty, remand the case for additional testimony, or grant a new hearing.

The Board of Police Commissioners for the city of Detroit has the authority to receive complaints, monitor the investigation or conduct it personally, and can affirm or set aside disciplinary actions that are imposed by a departmental trial board. Among the jurisdictions in the United States that have created citizens oversight schemes, some will have a more limited role to play in the complaint process from that highlighted in the Detroit scheme, while others may have more extensive responsibilities.

An English Example

It is important to keep in mind that citizens oversight is not unique to the United States. Among the countries that have been very active in the development of oversight schemes are Australia, Canada, and England. It is for this reason that the English oversight scheme is also briefly featured.

Prior to 1976, the police of England and Wales were solely responsible for policing themselves. Some citizens questioned the efficacy of this approach and were successful at convincing Parliament to amend the process. With the passage of the Police Act 1976, the Police Complaints Board was established. The Board was essentially composed of part-time members, and its role was one of passive oversight in handling complaints. Critics of the Board pointed out that it did not have adequate contact with the police nor sufficient powers in the complaints process. These criticisms led to the Board being replaced with the Police Complaints Authority (see the Police and Criminal Evidence Act 1984).

The Police Complaints Authority is composed of citizens who are appointed to full-time duty by the home secretary. Excluded from service are all current and former English police officers. Under this system the Authority is more actively involved in the complaints process. For example, they supervise investigations of all serious complaints. "Serious" is defined as allegedly causing death or serious bodily injury to a person. In such instances the Authority must be notified of the complaint. The Authority appoints a police investigator, usually from another force, to conduct an investigation.3 Less serious complaints, that might be criminal as well as disciplinary in nature, are also immediately called to the attention of the Authority. In these cases the Authority simply supervises the investigation. In some instances the chief constable requests the Authority to oversee an investigation, even though it is not required. The rationale is usually that the chief constable wants to assure that there is a public presence throughout the investigation.

All other complaints may be either formally investigated or informally resolved. In cases where there is a formal investigation, the chief constable determines if a member of his force or an investigator from another force should conduct the investigation. Irrespective of the type of complaint, the Authority receives the final report on an investigation and its disposition. They also can seek an additional investigation into the matter if they are not satisfied with the original investigation.

Once an investigation is completed, and if it is determined that it involves a noncriminal matter, the chief constable is left with two avenues to follow. If the officer admits guilt, the chief can impose a sanction. In this instance the chief sends the Authority a report outlining the complaint, the investigation, and his decision on what sanction to impose. If the case involves a criminal matter, it is sent to the Director of Public Prosecutions. If the officer does not admit guilt, there is a disciplinary hearing before a tribunal. The tribunal is composed of a chairman (the chief constable of the force in which the complaint occurred) and two members of the Police Complaints Authority who have not been involved in the investigation of the case. The tribunal weighs the merits of the case and reaches a decision by a simple majority. If the officer is found guilty by the tribunal, the chief constable imposes a punishment. The decision to allow the chief to impose the sanction is based on the belief that he alone should have the responsibility to discipline members of his force.

COMMON CHARACTERISTICS

It is interesting to note, but not surprising, that citizens oversight schemes have only experienced a modest degree of success over the years and that those achievements have been limited to countries found in the West. Moreover, there appears to be some common characteristics associated with countries that have embraced the scheme thus far. Three are particularly significant: the role of democracy in the political process, the legal family with which the country is associated, and the manner in which the justice system is administered.

The Role of Democracy

It has already been suggested that there are variations in the way a country subscribes to the ideals of democracy. In the United States, the application of democratic political principles illustrates this point well. It also demonstrates how those principles have influenced the manner in which police are organized throughout the country.

One obvious example of this relationship is reflected in how people view governmental authority. The primary reason for the American Revolution was to overthrow the centralized authority of the British Crown which the colonists found too arbitrary. After they gained their independence, the founding fathers had to grapple with the issue of the nature and form of government to establish. As a result, the drafters of the United States Constitution attempted to distinguish the authority of the executive, legislative, and judicial branches of government, so that power would be divided among the three. The inspiration for this idea came essentially from the French Enlightenment philosopher, the Baron de Montesquieu (see Montesquieu, 1949). Herein lies part of the basis for the United States deviating from a parliamentary system of democracy. In the United States police powers are created by the legislative branch; those legal powers are then interpreted from time-to-time by the judicial branch; and law enforcement agencies are under the administrative control of the executive branch.

Another principle of the political ideology deals with the federated nature of the country. This was discussed in The Federalist and later given greater legal clarity of expression in the Fourteenth Amendment to the U.S. Constitution. 4 (see The Federalist). According to this amendment, each citizen is a citizen of the United States and subject to its federal laws and governmental administration. The person is also a citizen of the state in which he resides (of which there are fifty) and subject to state laws and governmental administration. Thus, a person holds a type of dual citizenship within the country.

A final principle stresses the importance of local self-government. This view basically suggests that each citizen should have the opportunity to become actively involved in the conduct of government and that governmental authority and as many governmental services as are reasonably possible should be based administratively at the local level. Local means the municipal and county levels of government. One of the original proponents of this position was Thomas Jefferson, and the source for his inspiration came from the political writings of the seventeenth century British philosopher, John Locke (see Locke, 1937). The acceptance of this principle has led to a long standing tradition in the United States of police being one of the major agencies administered at the local level.

Fear of centralized authority, the creation of a federal system of government, and the importance placed on local self-government has led to the development in the United States of more separately and publicly funded police agencies than is found in any other country in the world. The total number is approximately 40,000. Almost 20,000 of these are viewed primarily as police agencies that have as their principal responsibility the enforcement of law and the maintenance of order in their respective local jurisdictions, while the others possess only quasi-law enforcement functions that often have either a statewide or a federal jurisdiction. The roughly 20,000 police agencies are organized, administered, and accountable to either a federal, state, county, or municipal jurisdiction. Thus, police in the United States is a fragmented system. It is not highly centralized or unified which is characteristic of most police organizations throughout the world (see Terrill, 1995).

The long standing significance of these democratic political tenets help to indicate why citizens oversight of police has remained a recurring local issue in the United States. They also explain why there are so many administrative variations in the oversight schemes adopted in the country. And they demonstrate why a single oversight system for the country, such as that found with England's Police Complaints Authority, is simply not feasible at either the federal or state level of government.

The Legal Family

Most comparative legal scholars acknowledge the identification of legal families as a method of classification (David and Brierley, 1985). Throughout much of this century, the countries that are characterized as modern have been associated with one of three legal families: common law, civil law, and socialist law. The common law and civil law families are of particular significance for our purposes, because countries in the West are essentially affiliated with one of them.

The common law family is associated with the adversarial procedural mode. In this family legal disputes are often likened to contests in which two adversaries present their respective positions on the issue in question before a passive decision maker, a judge. The fact- finding that precedes the trial is the responsibility of the litigants, and the facts of the investigation are not available to the decision maker until the trial.

This characterization of the legal process as a contest is also extended to disputes between a citizen and government officials. The probability of such a dispute happening is enhanced by the extent to which the authority of the government is fragmented (Damaska, 1986). Fragmentation of authority may exist in at least two forms. One is a basic political dimension as expressed in the doctrine of the separation of powers that was mentioned earlier. The other dimension incorporates political, organizational, and geographical characteristics and is often found in countries that have federated systems of government.

Whereas the principal purpose of justice in the common law context is the resolution of disputes, civil law jurisdictions generally consider the implementation and enforcement of policy as the premier objective. As a result, one legal procedure is designed for a contest, while the other is characterized as an inquest (Damaska, 1986).

The civil law family is associated with the nonadversarial mode. Its most prominent procedure for resolving conflict is dominated by an inquiry in which most of the investigative activities are conducted by state officials. The manner in which the decision maker carries out his duties often displays a lack of independence and neutrality as the assistance of other state authorities is sought. Moreover, the state's interests are generally considered superior to those of the individual.

This kind of legal procedure does not lend itself to citizens seeking a resolution of misconduct before a neutral forum. Instead, they are apt to turn to the organization, in particular a ranking official within the hierarchy of the organization. Thus, while not terribly surprising, it is interesting to note that citizens oversight of police is primarily being developed in those countries that are part of the common law family.

The Organization of the Administration of Justice

Finally, a few words about the organization of the administration of justice in general and police in particular. Justice systems in common law countries tend to be more decentralized, while those found in civil law countries clearly display greater tendencies toward centralization. It would appear that the kind of legal procedure alluded to in the previous section on legal families is a contributing factor for the differences in organizations. Obviously, there are a host of other cultural factors and accidents of history that have influenced this development too.

The decentralized approach tends to distribute authority horizontally to several distinct organizations within the total justice system. Some of the officials are transitory to the system, others are not trained or are provided with little training, and others still are laymen. Generally, decentralization encourages local officials of the justice system to display a greater sensitivity to the norms of the community. This, in turn, assures a level of local accountability, of which citizens oversight is but one example.

With a centralized approach a logic is applied to the structure of the organization to enhance its efficiency and effectiveness. This includes the rank ordering of highly trained professional officials. Authority is distributed in a hierarchical fashion to officials who possess the skill and technical understanding to perform their tasks. The basic process of the organization is divided into distinct stages and is regulated internally by a network of unbending rules. These rules assure a methodical review of each stage of the process for purposes of efficiency and effectiveness. The methods of deterrence at the disposal of a hierarchical organization, such as the denial of a promotion, is designed to assure compliance with the rules. This kind of organizational design often provides a false sense of security. The perception or belief is that adherence to such procedures either reduces or eliminates the need for external oversight.

PROSPECTS

What are the prospects for countries in eastern and central Europe to develop citizens oversight schemes? Presently, it would appear highly unlikely. One reason is that the adoption and implementation of democracy as the political system of choice is still in its infancy. Basic democratic structures and procedures of government need to mature before this modest, but worthwhile idea, could be considered. That is assuming for a moment that it should be considered.

Another reason to doubt the prospects relates to the fact that the countries of this region were essentially all members of the socialist legal family before 1990. For the most part, all are presently moving in the direction of establishing a civil law system, which is the family that existed in the region before the emergence of socialist law. Most comparative legal scholars agree that the socialist legal family was basically a more highly focused and centralized version of the civil law family (Damaska, 1986; Markovits, 1982, 1986, and 1989; and Sanders and Hamilton, 1992). In light of the aforementioned remarks about the civil law system and the kind of organization for the administration of justice that it helps engender, this would tend to deter the establishment of citizens oversight schemes.

Toward the beginning of this paper, it was pointed out that citizens oversight of police was intimately tied to the issue of civil or human rights. The issue of racial or ethnic discrimination of minorities is an issue that many countries are confronted. While citizens oversight of police was not designed solely for that purpose, it is one modest attempt to address that issue in a specific context.

In spite of what was said about the prospects of developing a citizens oversight scheme in this region, it appears to me that eastern and central European countries that would want to consider exploring this idea have a model that would be worth considering. It is that of the Swedish Parliamentary Ombudsman.

NOTES

  1. The number of citizens oversight schemes has continued to increase in the United States since the mid 1970s. Presently, there are approximately 65 oversight schemes in such jurisdictions as: Chicago, Cincinnati, Cleveland, Dade County, Detroit, Indianapolis, Minneapolis, New York, Philadelphia, Richmond (CA), Syracuse.

  2. By systemic forms of accountability I am referring to components of the criminal justice system having a legitimate right based in law to scrutinize the actions of other components of the justice system. In the context of police this could include prosecutors, judges, and grand juries.

  3. The police of England and Wales essentially consist of 43 forces. There are 41 provincial forces along with the City of London Police and the Metropolitan Police of London.

  4. The fourteenth amendment to the U.S. Constitution was ratified in 1868. It states, in part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


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