Nancy Solomon: You're listening to The Takeaway. I'm Nancy Solomon in for Tanzina Vega. Following last summer's protests against police brutality, calls for civilian oversight of police became widespread in cities across the US. Often referred to as civilian oversight or review boards, this type of police reform allows a group of people outside of law enforcement to monitor and review police activity, including instances of misconduct or brutality. Yesterday on the show, we looked at the Civilian Oversight b=Board in St. Louis, Missouri, and the challenges that board has faced in holding officers accountable.

It got us wondering about just how successful or effective these civilian oversight bodies actually are. For that and more, we're joined by Sharon Fairley, professor of the University of Chicago Law School and the former head of Chicago's Civilian Police Oversight Agency. Sharon, welcome to the show.

Sharon Fairley: Thank you for having me.

Nancy Solomon: What exactly does a civilian oversight body do?

Sharon Fairley: Well, there are lots of different forms of civilian oversight, but when you think about these as a group, you can boil down what they do into four big buckets. The first is playing a role in the development or evaluation of policing policies and procedures. The second big bucket is involvement in the actual disciplinary process or the process of investigating complaints of misconduct or investigating critical incidents, such as use of force or officer-involved shootings. The third big bucket is helping the department be more transparent. Providing reporting, for example, on use of force incidents. Then the last piece I would call community engagement, being that liaison between the community and the department, being a forum through which community can express their concerns or interests about policing.

Nancy Solomon: What do we know about how effective these oversight bodies have been? Do they actually work?

Sharon Fairley: Well, what we do know is that cities are increasingly turning to civilian oversight as an important part of police accountability systems and an important element or strategy when it comes to police reform. Now, how effective they are, there's been a range. Even as well-established as civilian oversight is, it still comes under fire time and again because it's a challenging thing to do and it's certainly not a panacea when it comes to police accountability. It has to be part of a broader system that supports accountability writ large. In general, you can look to the key success factors that contribute to making civilian oversight as effective as it can be.

The first thing is that these entities must have sufficient jurisdictional scope in order to be effective. Say, for example, you have a board and all they can do is look at matters that are referred to them by the chief of police. That's not going to be very robust in terms of their ability to influence and really provide oversight. Jurisdictional scope has to be broad enough that the agency can have an impact. The second thing is resources. When we look back historically, what we see where agencies have failed, it's usually been because they didn't have sufficient resources to fulfill the mission that they've been given. Resources are really important, I mean financial, technical, and human, all of those.

Then the third big thing is structural independence. The entity has to be able to go about its work in a way that's independent and separate from the police department. They need independent access, for example, to information and materials and reports, they need subpoena power. Transparency has also been an issue. Some of these boards have been limited in the way that they're able to talk publicly about the work that they do and sometimes that's by choice, sometimes that's by law. For example, a collective bargaining agreement, or there may be a state law in place that prohibits them from going public with details around what they do. That can often be a challenge.

Then the last thing I would say is professionalism. That's something that I encountered when I was doing the work. It's really important that the people who are involved in this kind of work are trained and really know how to do what they're doing. It's very, very difficult work, so we need people who are trained and have the skills and experience to actually do it successfully.

Nancy Solomon: You mentioned subpoena power. Yesterday we learned that in St. Louis, none of the data and materials had been passed on from the police department to the oversight board. That seems like a particularly critical one. Looking at these boards across the country, can you tell us how many do have subpoena power?

Sharon Fairley: I don't have specific numbers, but what I will say is that it is a source of constant debate. When these boards are being formed, there's usually a lot of debate around this. There's actually even some jurisdictions where it's prohibited by law. For example, in Tennessee, I think in 2019, they passed a state law that actually prohibited these civilian oversight agencies from gaining subpoena power. This just shows you how strong the law enforcement lobby is in terms of its political power because law enforcement is always going to be pushing back against civilian oversight.

That's where that debate comes from. I'm seeing the idea of agencies having subpoena power really, really accelerating just in the last six to nine months in the wake of the summer protests around policing. I think we're going to see many of these agencies being given subpoena power. For example, the State of Virginia just passed a statute that created an opportunity for those cities in that state to create civilian oversight with subpoena power.

Nancy Solomon: Much of civilian oversight seems to come from either local or at the state level. Is there a role for the federal government in this?

Sharon Fairley: The federal government has the possibility of legislating on a lot of police reform issues, but one big issue that always crops up that would be very appropriate to be addressed at the federal level is the issue of qualified immunity. Because this kind of oversight is very much about managing local law enforcement activity, it is a local phenomenon. That being said, there is the possibility through state law to help support civilian oversight and create an environment in which civilian oversight can be successful through legislative initiatives like the one I just mentioned from Virginia.

Also, California, for example, just recently enacted a statute that enabled the counties of California to create civilian oversight for sheriffs departments, which is an area in which civilian oversight has been slower to gain traction just because sheriffs have their own unique political power being able to push back against civilian oversight. State law can be very helpful in creating an environment in which civilian oversight can flourish.

Nancy Solomon: Sharon Fairley is a professor at the University of Chicago Law School and the former head of Chicago's Civilian Police Oversight Agency. Sharon, thanks so much for joining us.

Sharon Fairley: Thanks for having me. My pleasure.

 

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