Associate Jan/Feb 2014

www.fbinaa.org

www.fbinaa.org

J A N 2 0 1 4 F E B

J A N 2 0 1 4 F E B

Measuring Law Enforcement Performance Dr. Jeffry Phillips

The purpose of this article is to discuss the value in assessing police organizations’ internal controls, and how this practice may assist in mitigating exposure that is inherent within police operations. By having a law enforcement performance auditing practice as part of a risk management program, law enforcement agencies may measure whether they are following their own policies and procedures, or whether such policies and procedures are adequate as internal controls to address the inherent risks of their law enforcement operations. In addition, such practice may enhance the ability to mitigate their risk exposure with lawsuits and consent decrees while contemporaneously adding public value to the police organization.

1, since 1997 the US DOJ has conducted at least 20 investigations into law enforcement agencies, six of which resulted in a memoran- dum of agreement, and five others resulted in consent decrees (United States Department of Justice, 2010). The goal of a consent decree is to imple- ment reform within law enforcement agencies by requiring them to institute best practice operational performance, by creating and/or improving current departmental policy and procedure, and providing for such best prac- tices to guard against constitutional rights violations. During the course of a consent decree, the subject law enforcement agency is tasked with implementing the requirements of the consent decree. (See chart on page 14) Additionally, the agency is compelled to provide evidence as to whether the implemen- tation has taken place (Ross & Parke, 2009). Providing some background on how the bigger issues are being dealt with on the fed- eral level, and how it affects state and local law enforcement agencies, is germane to our un- derstanding in measuring performance of law enforcement operations. Moreover, it is criti- cal to keep in mind the normative manner in which law enforcement agencies respond to claims of constitutional rights violations. By in large, law enforcement agencies will react swiftly by conducting a case biopsy, and mak- ing a determination on the specific issue at hand; whether admitting to fault, or defend- ing its actions. However, here we focus on the ability for law enforcement agencies to take a step back, and assess whether there are any systemic processes or issues currently in place that allowed, or facilitated something wrong to occur. Of great importance here is the current gap in measuring a law enforcement agency’s risk, or how operations are comply- ing with its own policy and procedures, and within the confines of state and federal law. continued on page 14

V arious authoritative means exist to thwart unconstitutional practices on behalf of law enforcement agencies. Certainly the pursuit of litigation is one that is perhaps most common in trying to make the plaintiff “whole”; however, when it comes to attempts in bringing change and reform to a law en- forcement agency that has been accused of constitutional violation patterns, perhaps amongst the most ubiquitous are consent de- crees and memorandum of agreements. Both consent decrees and memorandum of agree- ments may be initiated on behalf of the gov- ernment or private parties. In most instances where a consent decree is the result, a moni- tor is appointed as a mediator to determine whether reforms are being instituted (Kupfer- berg, 2008).

In 1994, Congress adopted 42 U.S.C § 14141 in response to overwhelming demand by the public for systemic reform of law en- forcement agencies. In essence, the statute au- thorizes the US Attorney General to initiate investigations on law enforcement agencies. Such investigations focus on conduct consist- ing of “pattern or practice” that violate or de- prive persons’ constitutional rights, or violate the law of the United States (Ross & Parke, 2009). Dependent upon the outcomes of the investigations, the US Department of Justice (DOJ) under the direction of the Attorney General may also file civil litigation to enforce the elimination of such illegal practices on part of the subject law enforcement agencies (Simmons, 2008; United States Department of Justice, 2010). As indicated in Table No.

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