Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 12

11-18-2010

Oversight of Law Enforcement is Beneficial and
Needed—Both Inside and Out
Barbara Attard
National Association for Civilian Oversight of Law Enforcement

Recommended Citation
Barbara Attard, Oversight of Law Enforcement is Beneficial and Needed—Both Inside and Out, 30 Pace
L. Rev. 1548 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/12
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

Oversight of Law Enforcement is
Beneficial and Needed—Both
Inside and Out
Barbara Attard
The civilian oversight of law enforcement movement in the
United States is expanding and evolving. In conjunction with
human rights and human relations commissions, oversight
organizations work to ensure that community members’ civil
rights are respected, probing issues of disparate treatment,
racial profiling, and excessive use of force in the law
enforcement agencies they oversee.
Oversight is becoming integrated into the fabric of our
society and government; there is recognition that oversight is
beneficial and here to stay. Community members are calling
for independent oversight and a voice in policing. In increasing
numbers, police chiefs, sheriffs and government officials are
recognizing that oversight is ―not about bad cops, but about
good government.‖1 More and more police officials are realizing
that internal investigations are controversial and thankless.
An oversight agency decreeing that a shooting or use of force
was within acceptable policy guidelines has more credibility
than an internal investigation making the same
pronouncement. A negative ruling bolstered by an independent
investigation helps to take the sting out of a contentious
disciplinary action. Oversight in its many forms provides
accountability and transparency for police issues that are
otherwise inaccessible to the larger community.


Barbara Attard is a private oversight and accountability consultant
with a 25-year career in oversight of law enforcement. Attard is a past
president and member of the board of directors of the National Association
for Civilian Oversight of Law Enforcement.
Her website is
http://www.accountabilityassociates.org.
1. A phrase coined by John Crew, former Acting Director and Police
Practices Director, Northern California Chapter of the American Civil
Liberties Union (NC ACLU). The NC ACLU has been instrumental in
advocating for and establishing oversight and promoting police accountability
in northern California for many decades.

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This article presents information about the current status
of the oversight movement, gives an overview of the models of
oversight in the United States, discusses the benefits and
essential elements of oversight, and provides an insight into
the work being done by the National Association for Civilian
Oversight of Law Enforcement (NACOLE) to establish
standards and further the oversight profession.
I.

Oversight of Policing

The models of civilian oversight in the United States vary
greatly. There are no federal or state standards to guide local
governments seeking to establish oversight. The genesis of
oversight varies as well and can influence the type of program
developed. Oversight can be established as a response to
problems within a law enforcement agency or to community
demand for independent civilian review, or a city or law
enforcement agency can proactively develop a model that it
believes is appropriate for its jurisdiction. Oversight has
become an integral part of municipal governments in most
large cities in the United States, with some smaller
municipalities and counties developing agencies to allow
community members to weigh in on policing as well.2 County
agencies with jurisdiction over sheriff’s offices have authority
to review incidents that take place in custodial as well as patrol
settings.
Scholars and researchers in the field state that there are
between two and four general models of oversight,3 although
more and more agencies developed in the last ten years employ
hybrid models, encompassing the ―best attributes‖ of several
models. The authority of oversight agencies ranges from
2. The resource page on the website for the National Association for
Civilian
Oversight
of
Law
Enforcement
(NACOLE),
http://nacole.org/resources (last visited Sept. 9, 2010), contains a list with 114
links to cities and counties in the United States that have oversight, as well
as one university, UC Berkeley Police Review Board. See also CITIZEN
OVERSIGHT OF LAW ENFORCEMENT xiii, 4 (Justina Cintron Perino ed., 2007)
[hereinafter CITIZEN OVERSIGHT].
3. PETER FINN, U.S. DEP’T OF JUSTICE, CITIZEN REVIEW OF POLICE:
APPROACHES
&
IMPLEMENTATION
vii
(2001),
available
at
http://www.ncjrs.gov/pdffiles1/nij/184430.pdf. See also CITIZEN OVERSIGHT,
supra note 2, at 11.

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appeal panels, to investigative agencies, to auditor/monitor
organizations, to civilian boards that have the ability to weigh
in on misconduct and discipline. Based on my experience,
there are three basic forms of oversight: (1) investigative; (2)
boards and commissions; and (3) auditor/monitor agencies.
Many cities have variations on two or three of the models
incorporated into their ―accountability systems.‖
In some cities, appointed monitors have been installed by
the Department of Justice or through a consent decree.
Appointed monitors work to solve problems in law enforcement
agencies with extreme issues of excessive force, death cases, or
corruption. The appointed monitors work in conjunction with
the established oversight body or independently to focus on
specific issues and problems.4
The efficacy of oversight organizations is difficult to
measure—this may be due in part to the many goals of
oversight, some of which may be conflicting. A tension exists
between the two objectives of impartially evaluating
complaints and responding to community interests.5 Focus
points for evaluating oversight cover a wide range, from
―sustained case‖ rates, to increasing community confidence in
the police service, to making policy recommendations that can
effect organizational change.6 Visibility is important; some
agencies are relatively unknown to the communities they serve,
while others are at the forefront, conducting active outreach
and public relations programs. Again, there is no standard for
measurement.
A. Investigative Agencies
Many oversight programs in large cities are investigative
models. These agencies generally have original jurisdiction of
complaints, have the authority to collect evidence, interview
witnesses—including officers and deputies—and make
4. The NACOLE website lists four current appointed monitors in the
cities of Detroit, Cincinnati and Oakland, and the New Jersey State Police,
and four past appointed monitors in the cities of Los Angeles and Pittsburgh,
the Metropolitan District of Columbia Police and Prince George’s County.
5. CITIZEN OVERSIGHT, supra note 2, at 22.
6. SAMUEL WALKER, THE NEW WORLD OF POLICE ACCOUNTABILITY 135,
144 (2005).

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findings. In jurisdictions that include a board or commission as
the adjudicatory body, investigations are conducted by civilian
staff and findings are ruled on by a commission or review board
following a hearing.
Investigative authority greatly strengthens an oversight
body. Investigative agencies ―frame‖ the investigation by
determining the allegations, witnesses to be interviewed, and
questions to be asked. Witnesses may be more forthcoming or
even willing to be involved in an investigation if it is being
conducted by an independent agency separate from the law
enforcement agency. Investigative methods, skill level, and
creative, attentive vigor influence the thoroughness and, in
many instances, the outcome of the case.
B. Civilian Review Boards and Commissions
Police review boards and commissions were some of the
earliest models of oversight developed in the United States,
some dating back to the civil rights and free speech movements
of the 1950s and 60s.7 Authority of police review commissions
varies, ranging from appeal boards that review cases brought
by disgruntled complainants or officers, to boards that hear
evidence and make findings in misconduct investigations
conducted by their staff or an internal affairs bureau.
Usually political appointees, commissioners are generally
selected by mayors, elected city councils or county supervisors.
A challenge presented by the board and commission form of
oversight is that there are usually no standards for
appointment of members of the oversight body; they often have
a wide array of skills and analytical ability. It is incumbent
upon the staff and the agency to ensure that board members
receive training regarding their authority, police practices,
investigative procedures, and ethics involved in their positions,

7. The Kansas City Office of Citizen Complaints recently celebrated 40
years of continuous oversight; the Berkeley Police Review Commission was
established through a voter initiative in 1973; the San Francisco Police
Commission, established in 1856, has broad authority over the Office of
Citizen Complaints and the Police Department, and holds hearings on serious
misconduct cases (the role and the makeup of the commission has evolved
over the years and continues to change).

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as well as ample documentation and information upon which to
base their decisions.8
Boards and commissions can greatly enhance community
confidence in a law enforcement agency; members of the public
are empowered to hear cases and weigh in on policy
recommendations, which engenders public trust and provides
an avenue of access to those who may otherwise feel
disenfranchised.
One powerful aspect of boards and commissions is that
historically they have conducted their hearings and business in
public, providing transparency and accountability.
In
California, this valuable public process has been eliminated
due to the California Supreme Court decision in Copley Press v.
Superior Court.9 Oversight boards must now hold their
hearings behind closed doors and the information that can be
made public is now restricted. Some other states have more
transparency regarding police officer discipline and
misconduct.10
C. Auditor/Monitor Model11
Auditor/monitor oversight agencies review and analyze
internal affairs investigations of police misconduct and have
broad authority to evaluate policies and procedures of law
enforcement organizations with an eye toward preventing
future misconduct. It is a newer form of oversight, developed
since the 1990s, and it involves auditors typically overseeing

8. CITIZEN OVERSIGHT, supra note 2, at 29.
9. On August 31, 2006, the California Supreme Court, in Copley Press,
Inc. v. Superior Court, 141 P.3d 288 (Cal. 2006), held that records of an
administrative appeal of sustained misconduct charges are confidential and
may not be disclosed to the public. The decision prevents the public from
learning the extent to which police officers have been disciplined as a result
of misconduct.
10. Philadelphia’s Police Advisory Commission posts its hearing
findings, including officers’ names, on its website.
Police Advisory
Commission,
Hearings
and
Opinions,
http://www.phila.gov/pac/Hearings_and_Opinion.html (last visited Mar. 27,
2010).
11. The use of the term monitor in this context does not refer to a DOJ
or court-appointed monitor. In this article the description ―appointed
monitor‖ will be used when referring to such an entity.

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the internal complaint process to ensure that misconduct
investigations are conducted in a fair and thorough manner. In
many jurisdictions the auditor may sit in on officer or witness
interviews and present questions to be asked. Disagreements
between the auditor and internal affairs can be appealed, but
in most organizations the police chief or the city manager has
final authority.
A strength of the auditor model is the ability to review all
complaints and analyze trends and patterns of misconduct.
Effective agencies utilize this information to generate reports
and effect change in the police agency or in dealing with
problematic officer/unit conduct.
The more effective
auditor/monitor oversight agencies have been fortified with the
authority to delineate allegations, classify investigations, and
conduct investigations in cases that internal affairs either
refuses to investigate or investigated in a less than thorough
manner.
II. Oversight of Policing in Contrast to Oversight of
Correctional Institutions
Oversight of jails and prisons has much in common with
oversight of law enforcement. Correctional institutions have
some of the same power over inmate’s lives as sheriff’s deputies
and police officers have over the lives of members of the public.
Both law enforcement officers and correctional officers have
enforcement authority and are empowered to use force.
Prison and jail officials have the added insulation of
ultimate authority behind closed doors. The ―code of silence‖
that keeps misconduct issues from coming to light can be even
stronger in closed institutions.12 Our society grants law
enforcers and officers who maintain our prison and jail systems
awesome powers to keep our streets safe and our society in
check. By the same token, oversight has emerged as one of the
checks and balances to ensure that our police, sheriffs, and
correctional institutions do not exceed or abuse the authority

12. JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, CONFRONTING
CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN
AMERICA’S
PRISONS
94
(2006),
available
at
http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf.

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granted to them.
There are some obvious differences in the two related
professions, which impact oversight of the respective fields.
Officials in custodial settings are responsible for health care,
housing, and classification in addition to keeping the peace.
Thus, oversight in the custodial setting has wider jurisdictional
authority and challenges. The custody context includes issues
related to housing inmates that are not as common in oversight
of law enforcement—including housing decisions and
classification of inmates, inmate-on-inmate violence, violence
by guards against prisoners, and inmate suicides.
Because prisons by their nature are closed institutions, for
the most part with few non-prison employees walking through
them, to be effective, those who have oversight authority of
correctional institutions must have the ―golden key‖—the
ability to conduct regular, non-routine inspections of the
facilities.
The overseers must have access to prisoner
grievances and all areas of the prisons.13 Because it is
important to have regular access and non-prison eyes and ears
inside the institution, some oversight officials actually house
their investigators in the custodial setting rather than in an
office outside of the institution.14
Both external law enforcement and custodial officers are
often resistant to oversight. Many officers feel that unless
someone has ―walked in my shoes‖ they do not have the proper
perspective or knowledge to question them or fairly evaluate
their work. Yet, as oversight of law enforcement becomes an
integral part of government in the United States, the benefits
of oversight are being acknowledged. Those in policing are
recognizing that allowing independent oversight and
community access to this information leads to increased
confidence in the process and the law enforcement
13. Id. at 80.
14. The Los Angeles Office of Independent Review (OIR) monitors
investigations of misconduct by the Los Angeles Sheriff’s Department
(LASD). The OIR was created by the Board of Supervisors at the request of
Sheriff Lee Baca, and has been given the tools to effectively evaluate the
LASD response to misconduct allegations, including resources, complete
access to Department records and personnel, and the full support of LASD
management. The OIR has investigator offices inside the county jail facility.
See OFFICE OF INDEP. REVIEW, COUNTY OF LOS ANGELES, FIRST REPORT,
available at http://www.laoir.com/report1.pdf.

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organization.
III. The National Association for Civilian Oversight of Law
Enforcement (NACOLE)
NACOLE is a national organization that serves the
oversight community in the United States.
A ―virtual‖
organization, NACOLE’s board of directors, with members
representing oversight agencies across the nation, works to
further the goals of the organization—to support oversight
practitioners and improve policing and police accountability.
NACOLE’s website (www.nacole.org) contains resource
documents and links providing information to those
establishing or researching oversight issues. An email group
delivers multiple articles daily regarding policing and oversight
issues in the United States and internationally.
NACOLE’s annual professional development conferences
provide training, certification, and credentialing opportunities,
offer panel discussions and workshops to keep attendees up to
date on developments in the field and programs in other
agencies, and feature inspirational keynote speakers who make
presentations on best practices and critical issues related to the
work of oversight.
The conferences invite dialogue and
networking, and challenge attendees to see their work with
new insights and ideas.
In addition to training and certification, NACOLE has
worked to move the field of oversight beyond the developmental
stage in which each agency and organization must create
policies and practices from whole cloth. The NACOLE Code of
Ethics for Oversight, ratified by the membership at the 2006
NACOLE Conference, has been adopted by many oversight
agencies. The professional standards committee has developed
standards for executive directors and investigators in the field.
NACOLE has recently launched a mentoring program to assist
those new in the field to develop one-on-one relationships with
experienced practitioners, in order to enhance their careers and
advance the ideals of the profession and the association.
NACOLE’s strategic plan includes ―growing‖ the
organization by securing funding to open a national office to
better serve the oversight constituency. NACOLE receives
calls and inquiries on a regular basis from community groups

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and government officials on all levels seeking assistance to set
up an oversight agency or restructure an agency that is no
longer effective. In order to meet these needs NACOLE is
working to develop capacity to conduct research on best
practices and assemble technical assistance teams to respond
to inquiries and calls for information from jurisdictions
working to start up or redefine their oversight programs.
IV. What is Needed for Effective Oversight Programs
Oversight faces many challenges.
As mentioned
previously, there are no set standards for models or procedures.
Oversight practitioners work in a minefield of stakeholders
who often have conflicting interests: law enforcement officials
who do not want to give up their authority to rule on
complaints and discipline their members; outwardly hostile
police unions; city and county attorneys that see independent
oversight and transparency as a liability; government officials
who want the image of accountability but are reluctant to back
the agency with adequate authority and funding; and
community members who often do not understand the
limitations of oversight. In order to succeed, regardless of the
model of oversight, there are key factors that must be present
to enable the oversight agency to overcome the challenges it
will inevitably meet and to credibly do its job.
A. Political Will
Without the political will to support independent
oversight, the agency will flounder and fight a constant uphill
battle to make the changes needed to correct problems in the
law enforcement agency it oversees. Oversight is most often
created in a time of crisis. Whether it is the result of public
outrage over a questionable police shooting, or a response to
the sustained action of a particular community group that feels
victimized by disparate treatment, it usually takes political
pressure to move government officials to establish independent
oversight. Public safety is most important for politicians; they
do not want to appear soft on crime or not supportive of law
enforcement. Oversight agencies and their recommendations
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undermine their authority.
The backing of courageous
politicians who value independence, accountability, and
transparency is necessary for the survival of oversight.
B. Authority
The organization must have ample authority to provide a
credible service to the community it serves. Agencies that have
investigative authority must have the ability to interview all
witnesses, including officers, and have access to all documents
needed to complete their investigations.
Auditor/monitor
agencies must have the ability to correct deficient
investigations either by requiring further investigation or
having the authority to conduct an independent investigation.
Boards and commissions must have the ability to initiate
change within the department it oversees. The creation of an
oversight agency is usually a process that involves community
support and action, and with it community expectations are
raised. In order for the oversight agency to be effective and
maintain the support of the community it serves, it must have
ample authority to make a change, when needed, in the law
enforcement agency under its jurisdiction.
C. Funding
Oversight programs must have adequate funding and
spending authority to complete the work outlined in the
enabling legislation.
Oversight agencies must have funding and authority to
hire staff at a level that allows timely and thorough
investigation (or review). If there is an appeals process, the
staff must be able to analyze the investigation and prepare
documentation for the appellate body in a timely manner.
Some agencies have staffing ratios written into the enabling
legislation.15
The agency must have funding to purchase and utilize
databases to track all aspects of complaints. Complaints are
15. FINN, supra note 3, at 89. A San Francisco voter initiative in 1996
amended the S.F. Charter to require the San Francisco Office of Citizen
Complaints to have one investigator for every 150 police officers.

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important quality-control indicators, and the statistical
information they provide, if properly gathered and analyzed,
provides invaluable tools for police managers and government
officials to identify potential areas for remediation. This data
can identify specific police practices, such as ―stop and frisk‖
detentions, consent searches, and discretionary arrests, which
give rise to complaints, along with police units or commands
where patterns of police-civilian interactions merit closer
examination. Complaints should be seen as one factor in the
assessment of an officer or a working unit or team—a factor
that is taken seriously as an indicator in how an officer is
handling interactions with those with whom he or she comes
into contact.
Oversight agencies should have the authority and funding
to hire outside consultants, including independent counsel. At
times policy recommendations must be supported by outside
consultants to be effectively presented. City and county
counsel offices, who represent the larger jurisdiction and may
be defending the law enforcement agency against law suits,
often have a conflict of interest and do not independently
represent the oversight agency—particularly in times of
controversy. Inadequate legal representation can result in
decisions being made without all of the relevant issues being
vetted.
D. Policy Recommendations
Policy review is widely seen as one of the most important
aspects of an oversight program in that it can effect
organizational change in the law enforcement agency. It is
imperative that the changes are adopted by the agency and
that there is ongoing monitoring to ensure that there is follow
through and training in the new procedures.16
E. Outreach
Outreach to the community is essential. Members of the
public, possible complainants, and all stakeholders must be
aware of the program and its benefits. Through outreach the
16. WALKER, supra note 6.

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organization can inform the community of the authority and
limitations of the program. Outreach should include both the
larger community as well as members of the law enforcement
agency and labor organizations—this will help establish and
maintain the credibility of the program to all involved.
F.

Reporting

A benefit of oversight is shining a light on otherwise closed
institutions.
Investigations of police misconduct were
historically the purview only of internal investigators and were
handled by the department brass. Jails and prisons have
historically been closed institutions with little or no oversight.
The growth in oversight has, through periodic reporting,
increased the amount of available information about the
organization or facility under scrutiny. Annual reports provide
a level of transparency and accountability to the community, as
they give insight into their law enforcement organization.
Reporting also increases public confidence in the oversight
agencies, as much of the work that they do is protected and
must be kept confidential. While privacy laws prohibit the
reporting of names or specific case information in many
jurisdictions, information on complaint numbers, trends, types
of complaints, policy recommendations and follow-up go a long
way to providing information about the process and
establishing a historical context and baseline for future
research and reporting.
G. Mediation
More and more oversight agencies are establishing
mediation as a method of resolving complaints.
While
programs differ in determining types of cases that can be
mediated, traditional misconduct investigations can have
limited efficacy in complaints that are one-on-one and relate to
discourtesy or a poor attitude. The majority of such cases result
in a finding of ―not sustained‖ (insufficient evidence), an
outcome that is not satisfactory to either party and has no
value in modifying conduct.
In successfully mediated
complaints, both the complainant and the officer can gain an
understanding of why the other person acted as he or she did.

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This understanding can change behavior in a more meaningful
and effective way than is possible in the disciplinary process.
V. Oversight – A Changing Profession in a Changing World
Oversight of law enforcement has blossomed, emerging as
a strong force for change, accountability, and transparency in
the last forty years. The proliferation of oversight agencies is,
in part, the result of increased information and communication
disseminated via the media and the Internet—bringing issues
of police misconduct, civil rights, and disparate treatment of
members of the community into our homes on a daily basis.
Changes in our culture resulting from the advent of the
Internet are dramatically impacting the world of oversight.
The transparency and support provided by strong investigative
journalism departments has traditionally worked to strengthen
oversight. The evening news and daily newspapers have
historically delved deep into police issues—investigative
reporters have been at the forefront, with breaking news
stories about use of force, unwarranted shootings or corruption
within a police agency. Today newspapers are fading, in
numbers and span of influence; the internet is taking the place
of the daily news, particularly for those under the age of thirty.
What is emerging is Twitter, cell phone cameras, blogs,
and the internet. Word travels fast—across the country and
around the world. Oversight agencies are stepping up and
putting the word out on Twitter to find witnesses. Cell phone
camera videos of police use of force, even shootings, are posted
and broadcast world wide. Police departments are now placing
video cameras in police vehicles and officers’ lapels.
Surveillance cameras are posted on many storefronts and
intersections.
There is more evidence—and real-time
documentation of incidents. It is a new world, maybe one that
will be more attuned to transparency and accountability.
Oversight agencies must be keenly aware of and adapt to the
changes in the global landscape.
The goals of oversight—improving policing and increasing
accountability—are laudable and congruent with those of
modern policing and community values. While it can be
difficult to navigate between stakeholders, all of the
constituencies weighing in on oversight serve an important

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function in maintaining a balance. Layers of review, both
internal and independent, and input and vigilance from the
community, work together to ensure that law enforcement is
responsive to the needs of the community it serves.
In the end it is political will that will determine whether
oversight is successful. An agency can have the ultimate
authority, yet if it does not have the support of those in power,
it will not succeed.
Oversight can be undermined by
appointments of ineffective or inept directors or commissioners,
cuts in funding, inadequate authority, or failure to obtain
support for its recommendations and findings. In order for the
civilian oversight movement to succeed in transforming law
enforcement, it must be backed by legislators on all levels who
are not afraid to confront issues of police misconduct and who
embrace the values of independent oversight.

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