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Complying With a Consent Decree Gerard LaSalle, Ph.D.
Dr. Gerard LaSalle was the Chief of Investigation for the Office of State Police Affairs from 2000 to 2005, and is currently the Research and Academic Advisor to the New Jersey State Police. As of September 2006, he is also Assistant Professor and Coordinator of the Criminal Justice Program at East Stroudsburg University in Pennsylvania.
Several police department in the United States are or have been under federal consent decrees to initiate reforms in their respective agencies. Police departments in Pittsburgh, Pennsylvania; Steubenville, Ohio; Los Angeles, California; Detroit, Michigan; and the New Jersey State Police (NJSP) are or were signatories to separate decrees with the United States Department of Justice (USDOJ) and supervised by federal district courts.
The affected department and the Department of Justice jointly select an independent monitor (Independent Monitoring Team or IMT). The IMT measures the nature and extent of compliance by the police department and issues periodic reports available to the public. This article will detail the nature of the consent decree in New Jersey, how the Attorney General’s office, through its Office of State Police Affairs (OSPA) investigative staff serving as a liaison, assists the NJSP in complying with the terms of the decree; and how the IMT functions and interacts with the OSPA to ensure that New Jersey is successful in instituting remedial safeguards to prevent a recurrence of the situation that necessitated the decree. To ensure that NJSP not only maintains the reforms that were brought about by the Consent Decree, but also surpasses them, NJSP has contracted with the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA®) to earn their accreditation by adhering to their high standards.
The consent decree in New Jersey came about after the publication of two major reports prepared by the New Jersey Attorney General’s Office. These reports addressed, among other issues, allegations of racial profiling by New Jersey State Troopers, and the nature and extent of the misconduct investigation process of the NJSP. The New Jersey Consent Decree, which became effective December 30, 1999, was to remain in effect for only five years if the State could demonstrate substantial compliance for a continual two-year period by petitioning the federal district court having jurisdiction. Necessarily, such a petition would also require agreement by the USDOJ and the IMT. In essence, the consent decree sets forth in specific terms, through paragraph tasks, how the NJSP is to accomplish “traffic enforcement, vehicle searches, data collection, training, supervision, complaint procedures and public reporting.” These, and other areas, are all duly covered in the CALEA Law Enforcement Accreditation Standards.
The Independent Monitor The consent decree outlines the specific duties and powers of the IMT. For the New Jersey Decree, there are actually two monitors, though in essence they function as one, with separate responsibilities. Basically, the IMT, who is an agent of the U.S. District Court of New Jersey, and who was selected by the USDOJ and the State of New Jersey is responsible to monitor and report on how the state is implementing the consent decree. This is accomplished by reviewing trooper incident reports, examining misconduct investigations, and assessing and evaluating the training provided by the NJSP. Additionally, the IMT has full and unrestricted access to state staff and non-privileged documents. Finally, the IMT offers technical assistance on all matters impacting on the decree.
For the first year of the decree, the IMT was required to issue progress reports quarterly, thereafter, semiannually. The report typically begins with an Executive Summary outlining the progress, or lack thereof, that the NJSP has made in meeting the task requirements of the decree. Areas of concern are mentioned in general terms, followed by the structure of the task assessment process, the operational definition of compliance, and finally, the methodology for assessing compliance. After quoting the terms of all the tasks of the Consent decree, the report details with sufficient particularity for each task, exactly what the NJSP, and the state, have accomplished to meet the Decree requirements. The report then reflects if a particular task is in “Compliance,” Not in Compliance,” or “Unable to Monitor.”
As the IMT has often indicated, their role is not only to ensure compliance, but also encourage and guide the NJSP in developing its own process to remediate problems noted by the decree, and assess that process in terms of compliance. These actions are also consistent with CALEA’s methodology. Thus, if a trooper purposefully neglects to activate the audio or video recording device, in a marked or unmarked vehicle so equipped, during a motor vehicle stop, and that infraction is detected by NJSP or an OSPA review, the IMT does not calculate as an error that oversight in assessing compliance.
It is imperative that a process is in place not only to detect, but also to modify behavior. Such modification can occur through some type of intervention, to include training, oral or written counseling, or perhaps a special schedule for future reviews of all the motor vehicle stops of a particular trooper by a supervisor. Of course, if criminal or egregious conduct is reviewed, that information is forwarded to the Office of Professional Standards for appropriate action.
The NJSP Misconduct Investigation Process The New Jersey Division of State Police has a sworn complement of approximately 2990 officers. Though motorist interactions comprise the majority of citizen contacts, the State Police provide a variety of other police services. Special investigative units in organized crime, intelligence, street gangs, public corruption, and terrorism, to name a few, all draw upon the heavily taxed State Police resources. With such a broad mandate, the number of complaints classified as misconduct in its most recently published (2005) statistics, 413 pales in comparison to the over two million citizen contacts.
The NJSP Office of Professional Standards (OPS) comprised of the Internal Affairs Investigation Bureau (IAB) and Intake and Adjudications Bureau, is directed by a major, and is responsible for accepting, processing, and documenting all allegations against NJSP personnel. Complaints can originate from an advertised 800 Hotline, mail, in person, or any other source that may cause a citizen to contact any section or troop to complain of objectionable trooper behavior; this includes the Office of State Police Affairs or the Attorney General’s office. Additionally, troopers are required to carry a NJSP Compliment/Complaint form in their vehicle, and make the form available to a motorist who wishes to file a complaint immediately after interaction with a trooper. This form can be mailed directly to the Office of Professional Standards or the Office of State Police Affairs.
After receipt, the complaint is classified either as an administrative matter, performance issue (minor infraction) or if the allegation reflects the officer has violated any federal or state statue, or a State Police Rule and Regulation or Standard Operating Procedure, a misconduct issue. Allegations classified as misconduct, typically egregious, are then investigated by IAB. Citizens who were arrested or violated a motor vehicle regulation generated the complaints which resulted in the 413 misconduct investigations during 2005
The Office of State Police Affairs The Consent decree was the enabling document creating the Office of State Police Affairs (OSPA). The OSPA is part of the New Jersey Attorney General’s Office, and as such, is independent from the NJSP. Answering directly to the Attorney General, as does the Superintendent of the NJSP, the OSPA is in a position to provide oversight and coordination with the NJSP and the IMT. The OSPA, which is headed by a Director, is also comprised of a Chief of Investigations, State Investigators, and Deputy Attorneys General.
The main function of the investigative staff is ensuring implementation of the consent decree through coordination with the NJSP and the Independent Monitor. The OSPA’s major tasks include auditing the manner in which the State Police addresses misconduct issues to auditing trooper performance relating to all motor vehicle stops.
Two specific tasks under the consent decree require the OSPA to take the lead and develop protocols to measure process and outcomes. In the first task, the OSPA must contact motorists who were subjected to motor vehicle stops or other enforcement actions and evaluate whether troopers appropriately documented the incident, and conducted themselves in a professional manner consistent with relating regulations and operating procedures.
This task is accomplished through random sample mailings of questionnaires and telephonic follow-ups. A series of questions gauge compliance by the troopers with this task. Deviations from accepted protocols are forwarded to the NJSP Operations Section for appropriate training, or if the conduct was egregious, sent to the Office of Professional Standards for their appropriate action.
The second major task entails auditing how the NJSP receives allegations and classifies them, and the manner in which they conduct investigations. The consent decree designates specific elements to be included for each misconduct investigation. For example, complainants must be notified by mail to acknowledge receipt of their complaint, and when the investigation is completed, notified of the findings and type of disciplinary imposed, if any. All investigative action must be documented, and maintained in the case file. If the allegation is of the type that would generate a video recording of the incident, then that video must be reviewed by the IAB detective for any evidentiary value.
After the IAB detective has applied the “preponderance of evidence” standard to all the facts in a case, the detective recommends one of the following closing dispositions:
The preponderance of evidence standard basically determines whether the facts in the investigation, that should be persuasive and convincing, have demonstrated a greater possibility than not, that an administrative violation has occurred.
The OSPA has developed evaluation instruments to measure each task of the Decree and to ensure that the NJSP are complying with that task’s requirements. State Investigators review and evaluate all of the investigative closings using these instruments. In those instances where documents are missing, or the OSPA investigator disagrees with the conclusion of the NJSP detective, the OSPA Chief of Investigations, with the Captain of the IAB, will resolve those contentious issues. If required, the case will be returned to the NJSP for additional investigation, or to obtain the required documentation. If IAB conducted an interview using an audio or video tape, then OSPA reviews and evaluates those recordings, using separate measurement instruments.
Other OSPA requirements entail auditing the State Police 800 Complaint Hotline, and interviewing a sampling of complainants after their allegations are finally adjudicated. Once again, separate evaluative instruments developed by the OSPA ensure that callers to the Hotline are treated professionally, are not discouraged from making complaints, and are sufficiently probed about the details of the incident. All the methods, completed instruments, and findings used by OSPA, are made available to the federal monitor who prepares an official report to the U.S. District Court for the District of New Jersey, and is available to the public.
In another liaison role, OSPA assisted the IMT in securing the necessary documentation to demonstrate that the State Police were attempting to achieve compliance. This was achieved by examining the tasks under the decree and securing relating SOPs, inter-office communications, and internal memoranda that exhibited the efforts of the NJSP in complying with the training requirements of the decree. The OSPA Deputy Attorneys General also augment the NJSP class instruction relating to search and seizure, cultural awareness, and ethics— all mandatory topics of instruction under the decree and also mandatory accreditation standards in Chapter 1 of the Standards for Law Enforcement Agencies, 5th Edition.
Commenting directly from the IMT’s 7th report regarding training, “[the Monitor] during several conversations with (NJSP) academy staff, areas of need were identified and the [OSPA] liaison was able to offer an immediate response and helpful suggestions, thereby demonstrating that a more supportive and cooperative rapport now exists between the Office of State Police Affairs, the academy, and the monitoring team,…[the] monitoring team notes that this new cooperative and supportive way of conducting business is a critical piece that, if sustained, will greatly facilitate a more expeditious and successful completion of the consent decree tasks related to training.”
Conclusion The consent decree is the guiding lens through which the investigative section of the Office of State Police Affairs audits the workings of the New Jersey State Police. Each audited task required the formulation of a separate measuring instrument to evaluate the various processes employed and outcomes achieved by the State Police.
Federal consent decrees have resulted from some form of negative police conduct. The monitoring process is designed to ensure implementation of reform initiatives to correct that conduct. As you would expect, there is a natural tendency by the affected police agency to resist such monitoring, which they view as another form of civilian oversight. This resistance can also manifest itself in low morale, and additional tax on agency resources that must now devote personnel, and time to develop policy initiatives to mirror the reform language of the consent decree. The NJSP believe that by enrolling in the CALEA Accreditation Process, and ultimately becoming accredited, it will facilitate and guide these initiatives through the mandatory written directives required by the CALEA Standards.
In New Jersey, the Chief of Investigations, who previously had 25 years in an investigative oversight capacity with the U.S. Department of Justice, has developed an excellent working relationship with the IMT that has resulted in immediate answers to questions raised by the NJSP as they attempt to come to terms with the decree. Not only has the OSPA’s “pre-monitoring” of the NJSP facilitated the IMT’s review, but also more importantly, it has demonstrated that the agency has a strategic plan to accomplish the aims of the consent decree. In effect, the OSPA has guided the NJSP to prioritize the consent decree through goals, set timelines for those goals, and developed instruments to assess progress toward compliance.
It is in this capacity, that any agency subjected to consent decree reforms reaps its greatest benefit. Specifically, it is critical that the police agency “buy into” the consent decree and come to the realization that the decree is a permanent fixture of the department. The sooner the top commanders filter that message down the chain of command the quicker the department will be in compliance. There can be no mixed messages about the decree. A comparable truism pertains to the CALEA Program.
The IMT noted in one of its progress reports that the Office of State Police Affairs “has made continual progress in its role as a partner in reform... [OSPA] serves both as a quality control mechanism and as a mentoring presence…progress towards compliance continues to be fostered by OSPA.”
According to the IMT’s most recent evaluation (the 14th in 2006) the NJSP has been 100% compliant with the terms of the Consent Decree in its day-to-day field operations for more than two consecutive years. Though the NJSP currently remains under the Consent Decree, efforts are underway to seek permanent relief from the Decree. NJSP believes earning CALEA Accreditation will not only assuage public concerns about a recurrence of negative behavior, but also will demonstrate that the NJSP is capable of achieving the higher CALEA Standards and maintaining them.
Whenever outside monitoring is an inevitability, the creation of a unit similar to the Office of State Police Affairs acting as a liaison with the affected police department and the monitor, will not only save the state resources by achieving compliance sooner, but will also facilitate the adoption of the consent decree reforms and restore the public trust, the ultimate goals, whenever a consent decree comes to town. Alternatively, police managers believing that independent monitorship of their department may be on the horizon should consider attaining CALEA Accreditation as a means to address and possibly forego such external review.
The views expressed are that of the author and not necessarily those of the State of New Jersey or the Office of the Attorney General.
References: (2006, June). Monitors’ Fourteenth Report Long-term Compliance Audit, Civil Number 99-5970(MLC). Available for review on the NJSP website.
(2005). Annual Report. New Jersey State Police, Office of Professional Standards. Internal Investigation and Disciplinary Process. Trenton, New Jersey.
(2003). Monitors’ Seventh Report. Long-term Compliance Audit, Civil Number 99-5970 (MLC). United States District Court, District of New Jersey. Trenton, New Jersey.
(1999). Joint Application for Entry of Consent Decree. US v. State of New Jersey and Division of State Police of the New Jersey Department of Law and Public Safety, Civil No. 99-5970 (MLC).
(1999). New Jersey Attorney General’s Office. Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling.
(1999). New Jersey Attorney General’s Office. Final Report of the State Police Review Team.
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