(a) The federal government should ensure the existence of a mandatory, up-to-date, accurate, and complete repository of state decertification records.
(b) States should ensure the existence of similar state repositories, and should make timely reports on officer decertifications to appropriate national repositories of records on decertification.
Comment:
a. National database of decertifications. The federal government and the states share responsibility for ensuring that all policing agencies have access to accurate, complete, and timely information about officers who have been decertified. Having such information available is possible only with mutual cooperation and commitment to promoting state and national repositories of records on decertification.
Presently, national information about certification and license revocation is collected in the National Decertification Index (NDI), a searchable registry operated by a nonprofit organization, the International Association of Directors of Law Enforcement Standards and Training. The U.S. Department of Justice has, at times, provided some funding to support the NDI. However, participation by states is voluntary. Not all states contribute to the index, and many who do participate do not do so in a timely fashion. The result is that the NDI cannot provide hiring agencies complete and accurate information about whether an officer has previously been decertified.
The federal government should therefore either develop a federal decertification database or promote and support a stronger version of the NDI, for example, by making full participation in the NDI a condition of grant programs for policing and by setting national standards for decertification. The federal government also should consider supporting a national registry that extends beyond decertification to include other information about officer misconduct, including civil judgments and settlements and terminations, which might be appropriately considered in officer hiring.
As long as the NDI is the primary national database for decertification information, states should participate fully in the NDI. In addition, each state should independently maintain up-to-date and accurate records on decertifications within the state; and those records should similarly be made easily available to policing agencies in a searchable registry.
Reporters’ Notes
Although effective state decertification laws can prevent officers from easily moving from department to department following misconduct within the state, state laws cannot prevent officers from seeking employment in another state. In fact, state decertification laws could generate spillover effects, as officers who have been decertified move to other states to continue to work in policing. In order for decertification to serve to protect the public and the profession without this consequence, Police Officer Standard and Training boards or commissions (POSTs) and law-enforcement agencies across the country must have access to complete, timely, and accurate decertification records from other states.
States should maintain registries of decertification and other misconduct, and they should fully report misconduct and decertification to the National Decertification Index (NDI), or similar national registry that replaces it. Because of the public-safety benefits and the low costs of reporting to states and agencies, states also should enshrine this best practice in law, requiring POSTs that decertify officers to contribute records, and requiring agencies to check state and national indices before hiring an individual to serve as a police officer. Federal support for a national decertification database could mitigate the challenges of states trying to coordinate efforts to generate a high-quality national repository for decertification information, and it would ensure that the country reaps the nationwide benefits of such an effort.
There have been several efforts to create an effective national repository for decertification information, but with limited success. See Roger L. Goldman, State Revocations of Law Enforcement Officers’ Licenses and Federal Criminal Prosecution: An Opportunity for Cooperative Federalism, 122 St. Louis Pub. L. Rev. 121, 150 (2003). The present effort is the National Decertification Index, run by the International Association of Directors of Law Enforcement Standards and Training, a nonprofit organization devoted to developing professional standards of public safety, including by partnering with states and sharing information with agencies. State agencies provide records concerning decertifications and license revocation to the NDI. Law-enforcement officers and background investigators for law-enforcement agencies may search the database at no cost to obtain information on state decertifications. Int’l Ass’n of Dirs. of L. Enf’t Standards & Training, National Decertification Index—FAQs, https://www.iadlest.org/Portals/0/Files/NDI/FAQ/ndi_faq.html (last visited Apr. 14, 2016). Although the index is not complete, state participation in contributing records has increased. Matthew J. Hickman, POST Agency Certification Practices, 2015 (Apr. 5, 2016) (draft on file) (noting that 38 POSTs contribute to the NDI, an increase of eight since 2011).
Nevertheless, three ongoing problems discourage universal participation. First, the index is voluntary, and existing reporting is incomplete and often substantially delayed. Second, the index has had inconsistent funding and federal support, leaving its future in doubt for many years. And third, because there has been no effort to standardize state decertification recordkeeping, it can be onerous for states and agencies to provide information to the index. Nomaan Merchant, Database of Problem Police Officers May Get Test in Ferguson, AP (Mar. 9, 2016) (“Even states that are relatively aggressive in identifying bad officers, such as Georgia, do not participate because their record-keeping differs too much from the national index, and the effort to convert the information would be time-consuming and costly”); see also Raymond A. Franklin et al., 2009 Survey of POST Agencies Regarding Certification Practices (2009) https://www.ncjrs.gov/pdffiles1/nij/227927.pdf (surveying agencies on efforts to report to the national database). Similarly, many states do not to check the database before certifying a new officer. Matthew J. Hickman, POST Agency Certification Practices, 2015 (Apr. 5, 2016) (draft on file) (noting that 28 state commissions always or frequently query the NDI before certifying an officer, an increase of 6 POSTs since 2011).
Although efforts to create an effective nationwide database have faltered in the past, recent concerns about police misconduct have generated new consensus about the importance of federal-government support for an effective national program. Many commentators have strongly advocated for a national misconduct or decertification registry, and the President’s Task Force on 21st Century Policing recommended both that national standards be developed for recordkeeping and that the U.S. Department of Justice work toward a national database. See Final Report of the President’s Task Force on 21st Century Policing, 30 (May 2015). The Task Force expressly recommended, “The U.S. Department of Justice, through the Office of Community Oriented Policing Services, should partner with the International Association of Directors of Law Enforcement Standards and Training (IADLEST) to expand its National Decertification Index to serve as the National Register of Decertified Officers with the goal of covering all agencies within the United States and its territories.” Final Report of the President’s Task Force on 21st Century Policing, Recommendation 2.15.