Prosecuting Police Officer Misconduct

+ Brandon Fuller

Effective systems of law enforcement require substantial concentration of power. For example, the power to incarcerate or use lethal force. But concentration of power presents a very old social conundrum, the question of “Who guards the guardians?” As Al Baker reported in The New York Times, New York City recently changed the way it answers this question in regards to police misconduct.

Mayor Bloomberg, Commissioner Kelly, and the independent Civilian Complaint Review Board (CCRB) announced an agreement under which CCRB attorneys, rather than police employees, will act as prosecutors in cases where the CCRB has provided evidence of police officer misconduct and recommended serious discipline. Police employees will still serve as judges in the cases and Commissioner Kelly will retain the power to accept or reject the trial judge’s recommendation. In the event that the Commissioner rejects a recommendation, he will have to provide written justification for his decision and the CCRB will have the power to appeal the decision.

The CCRB consists of mayoral appointees, some nominated by the Mayor directly while others are nominated by the City Council and the Police Commissioner. All board members are independent in the sense that they cannot hold a public position while serving their 3 year terms. By giving the board greater power to prosecute, the agreement brings an element of external, independent oversight to the issue of police misconduct. And while the agreement does not undermine the strong executive authority of the Police Commissioner, it does require that the Commissioner openly explain any decision to deviate from the recommendations that arise out of the trials in which the CCRB is now empowered to participate.

Whether one agrees with the new approach or not (the police union, for one, opposes it), the story is an interesting look at a city government grappling with the age old challenge of “who guards the guardians?”

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