Create Independent Investigations Systems for Police Accountability

By Matthew Kennis, member of the Amnesty International USA Board of Directors

Every time there is news of another shooting or killing by police, the question arises of whether the action was justified. Given that nearly everyone now carries a cell phone with a camera or video, not to mention the use of body and dashboard cameras in many law enforcement agencies, it is no surprise that a greater number of questionable cases of use of force rely on documentary evidence to help resolve cases where deadly force was used.

The key question is: What are effective deterrents to the unnecessary or excessive use of force and unlawful killings by police? And what system can provide accountability for the victims and their families?

There are multiple approaches to tackling the issue, from internal affairs investigations to civilian oversight boards. All have merit, and a combination of approaches can help address different challenges. But there is a critical missing piece -- the need for civilian-led, independent investigation agencies with criminal investigation mandates.

The main weakness with the internal affairs model is that by definition it is located within the police department. When a police force investigates itself, there is an inherent conflict of interest. Even when another police department is brought in to investigate, there is often widespread skepticism that the police code of silence will prevail.

Often, following incidents of excessive use of force, there are calls for greater training, improved protocols, and the need to establish a civilian complaint review board. In many cases, enhanced training can help prepare for challenging situations and can be an important safeguard. But training does not provide accountability.

Clear and narrow police use of force protocols are needed. In a recent report, Amnesty International found that all 50 states and the District of Columbia fail to comply with international standards on the use of lethal force by law enforcement officers. In order to better understand the scale and circumstances of incidents of police use of force, especially in cases of shootings, the Justice Department should ensure the collection and publication of nationwide statistics on police shootings, in accordance with the Violent Crime Control and Enforcement Act (1994) and the Death in Custody Act (2014).

It is also rare for civilian complaint review boards to have the necessary mandate, authority and resourcing to effectively serve as an accountability mechanism for police actions that cause serious injury. In April, Newark Mayor Ras Baraka signed an executive order to establish a Civilian Complaint Review Board, which holds out the promise of a civilian agency with enhanced investigation and oversight powers. But the mandate is restricted to enforcing disciplinary decisions, and researching and auditing policing patterns and practices. There is no criminal investigation mandate.

To complement internal police investigations, training programs, civilian oversight and clear use of force protocols, states should consider adopting civilian-led, independent investigation agencies. The credible possibility of an independent, thorough investigation that might lead to a prosecution of criminal action can help to deter such actions.

There are encouraging examples to consider. In April 2014, Wisconsin Governor Scott Walker signed a law requiring independent investigations state-wide in cases where suspects die while in police custody.

New York Governor Andrew Cuomo issued an executive order in July establishing the New York Attorney General as a special prosecutor to investigate police-related civilian deaths.

In Jamaica, where the average number of killings by police over an eight-year period (2006-2013) averaged over 230 per year, two years after the creation of the Independent Commission of Investigations (INDECOM) -- with a mandate to investigate and prosecute action by law enforcement that lead to serious injury or death -- police killings had been cut in half and overall shootings were down by 16 percent.

To establish an effective investigation agency, there are several important criteria to consider. First, to avoid a conflict of interest, it must be independent of the police, including independence in terms of human and financial resources. Secondly, the mandate should focus on investigating police actions that lead to serious injury and death and explicitly be authorized to undertake criminal investigations. An agency must be conferred with all the rights and privileges that a police department would have in undertaking a criminal investigation; would include the ability to inspect and examine all information and secure search warrants as needed; recommend disciplinary action or levy obstruction of justice charges for failure to cooperate; and have unhindered primary access to scenes as well as priority access to forensic processing capabilities.

Normally, independent investigation mechanisms rely on hotlines, the media, or other public facing outreach approaches for receiving word of incidents involving police. The strongest mechanisms require the relevant police department itself to notify the independent investigators as a matter of priority; and secure the perimeter so that the independent investigators can process the scene, properly catalogue evidence and identify witnesses. In many cases, this has been a challenge in practice. The main solution is to provide agencies with "teeth" so that a failure or unexplainable delay in notification may result in disciplinary action or be subject to an obstruction of justice charge.

Police accountability and justice for victims and their families should not be determined by whether somebody is recording on a cell phone or an officer is wearing a body camera. And while training, clear and narrow use of force protocols, and civilian review boards are all part of a system of accountability, what states can and should do to maintain public confidence in policing and help ensure accountability for unlawful action is create effective, well resourced, and civilian-led, independent criminal investigation agencies.