Agencies should, consistent with the need for confidentiality, be transparent and accountable, both internally within the agency and externally with the public.
Comment:
a. Transparency. Agencies should be transparent both internally and externally. Internal transparency—which refers to the culture and practices within an organization—is important for building officer morale and promoting effective management. Agencies can improve internal transparency by establishing clear and comprehensive rules, policies, and procedures and by ensuring that agency decisionmaking processes are open and straightforward. External transparency is essential to building trust and legitimacy between policing agencies and the general public. To promote external transparency, agencies should, consistent with § 1.06, make department rules, policies, and procedures available to the public, and should maintain and make public data on various aspects of department practice and procedure. Many jurisdictions already collect and make public data on police–citizen encounters, including arrests, summonses, stops, searches, and uses of force. Governments at the federal, state, or local levels can support these efforts by investing in tools to simplify data collection and reporting.
b. Accountability. Accountability likewise has both internal and external components. Internal accountability requires that officers be accountable to their departments through the chain of command—but also that police executives and agency heads hold themselves accountable to line officers and to the agency as a whole. Agencies in turn must be accountable to the public both directly and through various channels, including oversight bodies or inspectors general, executive officials, legislatures, and courts. Importantly, there must be both front-end and back-end accountability for agency actions. Back-end accountability addresses misconduct once it has already happened, through mechanisms such as officer discipline, civilian review boards, inspectors general, and judicial review. See Chapters 13 and 14. Front-end accountability requires that initial policymaking decisions be made in an open and transparent manner, with the input of the community. See § 1.06. These two forms of accountability work in tandem: for there to be effective back-end accountability, there must be clear rules enacted in advance, against which officer and agency conduct may be judged.
Reporters’ Notes
Transparency—the disclosure of, and public access to, government information—is a foundational value of democracy. Transparency ensures that citizen participation is effective and informed. See Executive Office of the President, Transparency and Open Government, 74 Fed. Reg. 4685 (2009). And it promotes trust in government by assuring the public that its agents are in fact acting in pursuit of the public good.
Transparency also is essential to effective policing. See generally President’s Task Force on 21st Century Policing: Final Report 9-18 (2015); Barry Friedman, Unwarranted: Policing Without Permission 29-50 (2015); Eric Luna, Transparent Policing, 85 Iowa L. Rev. 1107 (2000); David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1828-1829 (2005). Agencies that are transparent about their goals and methods gain the trust of the communities they work in, which improves public safety through effective information sharing and greater willingness on the part of the public to cooperate with the police. See Testimony of Charlie Beck, Chief of Police, Los Angeles Police Department, before the President’s Task Force on 21st Century Policing, January 31, 2015; Robert Wasserman, Guidance for Building Communities of Trust 27, Community Oriented Policing Services, U.S. Dep’t of Justice (2012).
Agencies should be transparent both internally within the agency and externally with the public. Internal transparency refers to the culture within a police organization. It ensures that “frontline” officers believe that department leadership follows the stated rules, policies, and procedures of the department. Officers who trust their supervisors are more likely to report incidents or dissatisfactions to their supervisors, promoting effective management and reform. See Joseph A. Schafer et al., The Future of Policing: A Practical Guide for Police Managers and Leaders 128 (2011). To improve internal transparency, agencies should have a distinct internal-affairs office; require training in ethics, integrity, and discretion; and implement consistent officer evaluations. See International Association of Chiefs of Police, Guidance for Building Communities of Trust, Community Oriented Policing Services, U.S. Dep’t of Justice 8-13 (2009).
External transparency is a prerequisite to public confidence and trust in the police: an ill-informed community is unlikely to participate in and engage with law enforcement. See Letter from Chief Jim Bueermann, President, Police Foundation, to President’s Task Force on 21st Century Policing, January 6, 2015. External transparency requires that—to the extent possible given needs of confidentiality, see § 1.06—agencies make their rules, policies, and procedures available for public review. Agencies also should collect public data on policing operations, including data on searches, stops, frisks, summonses, citations, and uses of force. See President’s Task Force, supra, at 14-15 (recommending robust data collection). A number of states already require policing agencies to collect such data. See, e.g., Cal. Gov’t Code § 12525.2 (use of force); Colo. Rev. Stat. Ann. § 24-33.5-517 (officer-involved shootings); N.C. Gen. Stat. § 143B-904 (use of force resulting in death); 625 Ill. Comp. Stat. Ann. 5/11-212 (pedestrian and traffic stops); Cal. Gov’t Code § 12525.5 (traffic stops, frisks, searches, summons, and arrests); Conn. Gen. Stat. Ann. § 54-1m (traffic stops); N.C. Gen. Stat. § 143B-903 (same). A growing number of agencies collect such data voluntarily. See, e.g., Police Foundation, Public Safety Open Data Portal, https://publicsafetydataportal.org/stops-citations-and-arrests-data/ (last visited: Oct. 26, 2016) (collecting publicly available data on stops, citations, and arrests). New technologies, such as body-worn cameras, also can help facilitate more robust data collection and promote external transparency—though countervailing privacy concerns may limit at least to some extent the information that can be made public.
Accountability is an important, and related, value. Because one of the functions of policing in safeguarding democracy is enforcing the law, see § 1.02, agencies themselves must be accountable to the law and not consider themselves above or outside it. Accountability in this context requires multiple channels of responsibility—again, both internal and external. Individual officers must be held accountable by the chain of command. Agency executives, in turn, must hold themselves accountable to frontline officers and, when applicable, their union representatives. See Christopher Stone & Jeremy Travis, Toward a New Professionalism in Policing 14, Harvard Kennedy School’s Executive Session on Policing and Public Safety (2011).
Agencies also must be accountable to external structures, including community advisory boards, inspectors general, city councils, and courts. See Christopher Stone & Heather H. Ward, Democratic Policing: A Framework for Action 5, Vera Inst. (1999) (describing layers of accountability in the Los Angeles Police Department); Testimony of Charlie Beck, Chief of Police, Los Angeles Police Department, before the President’s Task Force on 21st Century Policing, January 31, 2015 (same). But above and beyond all this, policing agencies must be accountable to democratic forces, including legislative bodies and the body politic. See Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827 (2015).
Although the concept of “accountability” typically is associated with “back-end” or “after-the-fact” accountability—through mechanisms such as officer discipline or judicial proceedings—it is essential that there be accountability at the “front end” as well. Front-end accountability refers to the process by which critical policy decisions are made. It requires that agencies have rules and policies in place before officials act, and that the policies be available to the public and to the extent possible formulated with public input. Maria Ponomarenko & Barry Friedman, Democratic Accountability in Policing, in Reforming Criminal Justice vol. 1 (Eric Luna, ed. 2017). The two forms of accountability work together: front-end accountability sets the rules of the road, and back-end accountability ensures that those rules are followed. Even when there is misconduct—or simply an undesired outcome—principles of front-end accountability can play a critical role by encouraging agencies to reexamine existing policies and identify changes that could be made to avoid similar incidents in the future. See, e.g., James M. Doyle, Ideas in American Policing: Learning About Learning from Error (2012) (describing the principle of “forward-looking” accountability which plays a key role in fields such as medicine and aviation).