White Paper

The Role of Penalty Schedules in
Managing Police Misconduct
A White Paper produced on behalf of the Memphis Shelby Crime Commission
by Philip J. Maloney M. A., Research Fellow.
A Publication of the Memphis Shelby Crime Commission
Volume 1, Number 4, September 1999
Foreword
This study, The Role of Penalty Schedules in Managing Police Misconduct, is the fourth in a series of White Papers on issues related to public safety. While the primary method of research for the Memphis Shelby Crime Commission (hereafter, the Crime Commission) is best practice investigations, not all topics lend themselves to this format. The purpose of the White Paper is to cover special issues, policies and concerns not specifically addressed by the Crime Commission's Best Practice Studies.
A White Paper is usually defined as a statement of proposed government policy on a particular subject. In government departments, White Papers are drafted by civil servants, but the final decision concerning their content is at the discretion of the agency head in line with stated administration policies. A common procedure after the publication of a White Paper is for the governmental organization to initiate legislation or policy construction embodying the position proposed. As an aid to this task, a White Paper serves as a form of public scrutiny of the proposed policy. It is often the case that governmental agencies accept comments from interested bodies, as well as the general public, on the content of White Papers. Such comments have varying degrees of influence upon the legislation that follows.
While the Crime Commission is an independent, non-governmental, nonprofit organization, the purpose of its White Papers closely mirrors that of governmental agencies. The content of these White Papers may serve as statements of position by the Board of Directors of the Crime Commission. However, the primary goal is to formulate an assessment of an issue for public comment and review. Upon publication, an outcome of the Crime Commission's White Paper may be the ratification of the stated position as the accepted standard of practice, but the success of the White Paper will not be measured by whether or not the stated position becomes standardized.
In articulating this White Paper position, the Crime Commission is not rendering legal advice as to the legal ramifications of adopting this recommended position. The recipient of this position is therefore advised to seek legal opinion and the recipient should not rely on this position as legal opinion.
I. Introduction and Methodology
At the request of the Director of the Memphis Police Department, the Crime Commission agreed in April of 1999 to review the penalty schedules of peer departments around the country. For the purposes of its comparative analyses, the Crime Commission has selected a standard list of review cities: the Memphis 2005 peer cities,1 the nine cities with populations above 500,000 that reduced crime the most during the 1990s,2 and two additional cities in Tennessee, Knoxville and Chattanooga. On the basis of information obtained from an earlier study ("A Review of Police Records Retention Policies for Internal Security Files," White Paper, 1(3), 1999:7-8), it was determined that the Charlotte-Mecklenburg, Houston, Indianapolis, Knoxville, Los Angeles, New York, and San Francisco police departments had disciplinary schedules in place. Requests were made to these departments and all but one provided us with the requested documents.3 In order to expand the database, inquiries were also made to five additional cities, and schedules were received from Minneapolis and Chicago.4
As the number of departments implementing penalty schedules suggests, the use of schedules has not gained the same level of acceptance accorded to written directives generally. This may be explained by the fact that while there has been empirical work done on the effectiveness of written directives in general for the management of police discipline, there has been no such work dedicated to penalty schedules in particular.5 It would thus be difficult, if not impossible, to rely merely on an empirical analysis of existing schedules as a justification for recommending them generally. The argument in favor of schedule adoption must then rely in large part on consistency with well-established principles of police management and with the specific requirements of the management of police misconduct. That this is also true of the argument for written directives in general suggests that this poses no special burden on the present study.
On the assumption that the adoption of penalty schedules has been justified independently, there is value in polling existing schedules to determine the range of management styles they evidence and to identify those generally exhibited properties which are consistent with the management and operational principles supportive of schedule adoption. Thus, following a discussion of the importance of written directives for managing misconduct and of the particular benefits offered by penalty schedules, the schedules received by the Crime Commission are analyzed and specific recommendations on the adoption and administration of a penalty schedule are made.
II. The Role of Written Directives in Managing Police Misconduct: An Overview
A. Police Misconduct: The Scope and Nature of the Problem
The problem of police misconduct is a persistent and serious one. Though a number of factors combine to make reliable estimates of the number of officers engaging in misconduct difficult to obtain, the sheer number of individuals working in law enforcement suggest the scope of the problem. If only a small percentage of the approximately 600,000 sworn officers in the United States engages in some form of misconduct, then there are thousands of officers involved in illegal or improper activities.6 The significance of these figures is supported by an examination of the history of policing in the United States. This history is one of real progress and accomplishment in the areas of crime control and order maintenance. Unfortunately, it is also a history punctuated by a series of corruption scandals and reforms: "To study the history of police is to study police deviance, corruption and misconduct" (Kappeler, Sluder, and Alpert 1998:28).7 From the formation of the first official police forces in the mid-1800s, police managers have struggled with the many problems caused by police misconduct. From the widespread, organized corruption of the late nineteenth century (Uchida 1997) to the more isolated, but apparently endemic corruption of the present era (Sherman 1978), the impact of police misconduct on police organizations and the public which they serve forces agreement with Harry W. More's assessment that, "Police administrators are confronted with many critical goals, but few are more important than the eradication of corruption" (More 1992:265).
In light of the importance of this goal, police managers face significant questions about the continuing problems of police misconduct. In response, police managers often point to the social-scientific analysis of police misconduct that has produced a complex and multifaceted explanation of its causes and its resistance to control. Despite its complexity, this explanation has been remarkably stable. Explanations for deviant behavior by police officers from the early 1970s (Barker and Roebuck 1973; New York (City) Commission to Investigate Alleged Police Corruption 1973; Reiss 1971; Stoddard 1968b) identify the same dynamic of social and structural factors as does more recent research (Barker and Carter 1994; Commission 1994; Kappeler, Sluder, and Alpert 1998; Kleinig 1996). Commonly identified causes of police deviance include socialization into institutionalized organizational deviance (Stoddard 1968a), necessary limits to management oversight (Bahn 1984), and the influence of ideology on the character and conduct of police officers (Kappeler, Sluder, and Alpert 1998: 83-108). Commonly identified barriers to institutional control include disagreements amongst police administrators on the nature, scope and seriousness of police deviance (Barker and Wells 1982),8 the perceived importance of organizational loyalty, the most common expression of which is the so-called "blue wall of silence," and a common feature of the police subculture which serves to insulate police operations from political control and to control public perception of police work: the "code of secrecy" (Kappeler, Sluder, and Alpert 1998: 99; Manning and Van Maanen 1978).
B. The Challenge Posed to Police Management by Discretion
One feature of police work stands out as both a potential cause of deviant behavior and a barrier to its successful control: discretion. The use of the term discretion in the context of police work refers to the mandate given to officers by the community to satisfy the demands placed on them by their work according to their best judgement (Kleinig 1996:83). This mandate creates a zone of authority, a range within which police officers can make choices as to the best course of action. This range is distinct from the range of possible actions. In certain situations, the range specified by the discretionary mandate will overlap with all or a significant portion of the full range of possibilities (broad discretion). In others, the discretionary range will be tightly constrained (narrow discretion). In practice, the dividing line between broad and narrow discretion is determined by the seriousness of the situation prompting the action and the severity of the action contemplated.
Thus understood, two elements of police discretion are of particular note. First, the source of police discretion is the mandate given to police by the community. At the basis of this mandate is a practical necessity. The variety of roles and situations in which police officers find themselves makes it impossible to anticipate and establish procedures for each situation. If they are to be able to do their job, police officers must be given latitude in decision making. Second, the necessity of the mandate in question in no way undercuts the legitimate expectation of the community that the discretionary powers of the police be used appropriately. The community's necessary reliance on the judgement of police officers' judgement emphasizes the restrictions placed on the exercise of that judgement.
These two elements highlight the complicated role discretion plays in the practice and theory of police work. As Manning has recognized, "Police work must both rely on discretion and control it" (Manning 1971:23). It is the unenviable task of police managers to articulate and enforce the balance between the necessity and risks of discretion.9 This task can only be accomplished if police managers provide guidance on the appropriate uses of discretionary powers and implement procedures to ensure that this guidance is followed. Police administrators have developed a number of guidance and control mechanisms including: instituting hiring and training guidelines, developing and endorsing clear, workable and effective agency guidelines, creating and supporting internal affairs departments, and allowing and encouraging public oversight of police disciplinary procedures. One guidance and control mechanism that has achieved almost universal acceptance is the written directive.10
C. Written Directives as Management Tools
A system of written directives is an invaluable tool for the police manager (Wilson and McLaren 1977:136). A central function of the police manager is the direction and control of the officers under his or her command. Written directives respond to both elements of this function. Whether taking the form of procedures, regulations or orders, written directives identify appropriate ranges of action. They thus serve as formal indication of the guiding principles of the department, minimizing confusion amongst the personnel as to the discretionary limits imposed by the department. Additionally, on the basis of the expectations established by written directives, it becomes possible to develop appropriate control mechanisms to insure that personnel are responding appropriately to these limits.
Some of the specific advantages for police managers in the formulation of written directives are their capacity to:
1. Assure a greater degree of consistency of action among a large number of individual officers who are confronted by wide varieties of tasks.
2. Clarify findings, directives and mandates laid on law enforcement by legislation or judicial pronouncement.
3. Establish and clarify priorities among law enforcement functions.
4. Enhance police training and give consistent guidance to new recruits.
5. Enhance community relations.[Institute, 1986 #551:1. Cited in (Carter and Barker 1994: 16-17).]
By providing direction to officers and controlling their behavior, written directives maximize the effectiveness of the service offered to the community by the department. To the police executive, whose success is typically measured by the effectiveness of this service, written directives are thus essential.
D. The Protective Functions of Written Directives: Organizational and Legal Considerations
In addition to their managerial benefits, written directives also have important protective functions. By strictly delimiting the range of acceptable procedure, directives insulate departments and personnel from internal and external sanction. Internally, the guidance and accountability functions of directives protect personnel from malicious or capricious discipline. An officer can use his or her compliance with explicit department regulations to dispute disciplinary findings and penalties. Likewise, supervisors can protect themselves from frivolous or unfounded personnel complaints by reference to established disciplinary procedures.
Externally, though a system of written directives that is carelessly or inconsistently implemented can expose departments or personnel to civil liability under the Federal Civil Rights Act (in particular, 42 U.S.C. 1983),11 a well-crafted and consistently implemented set of directives can serve as a prophylactic to such liability.12 With the appropriate promulgation and training mechanisms in place, a department can defend itself against the claim that a violation of Section 1983 is the result of the "deliberate indifference" of the department. Given this, the temptation to avoid any liability exposure by refusing to formally codify department policies and regulations could actually increase a department's exposure to liability.
Personnel, both officers and supervisors, also gain some protection from liability from a properly written and implemented system of directives. The most common defense against liability claims in civil rights cases is the good faith defense: "Good faith basically means that the officer is acting with honest intentions, under the law, and in the absence of fraud, deceit, collusion, or gross negligence" (del Carmen 1994:418). Establishing good faith is a matter of convincing a jury that the defendant was acting in the sincere belief that what they were doing was lawful and that this belief was a reasonable one.13 One key to establishing such belief is the demonstration that the officer was acting in accordance with established department directives. Though typically supervisors are held liable only for their personal actions (direct liability), supervisory negligence is an increasingly common source of indirect liability. There are various grounds for establishing vicarious liability in supervisory negligence. One is the failure to establish adequate discretionary guidelines.14 As del Carmen notes, "The best defense against negligent failure to direct is a written manual of policies and procedures for departmental operations (del Carmen 1994:423).15
E. Managing Misconduct with Written Directives
Because written directives effectively, " provide guidance to the members of the police department as well as establishing a means of accountability" (Police 1977:22), the IACP has determined that, "Written directives serve as the foundation of effective discipline" .
The value of written directives for effective discipline is in the explicit limits they impose on discretionary behavior. It is for this reason that the National Advisory Commission on Criminal Justice Standards insists that:
Every police agency should acknowledge the existence of the broad range of administrative and operational discretion that is exercised by all police agencies and individual officers. That acknowledgement should take the form of comprehensive policy statements that publicly establish the limits of discretion, [and] that provide guidelines for its exercise within those limits (Goals 1973:21)
Research by the IACP indicates that most officers recognize the need for guidelines specifying organizational expectations and appreciate the contribution that such guidelines can make in raising and maintaining appropriate standards of conduct (Police 1977:240, 248).
Of special import for the present study are two desirable effects written directives have on the management of police misconduct. First, directives serve as a limit to the formation of institutionalized deviant attitudes. As both the Knapp and Mollen Commissions recognized, deviant behaviors not explicitly proscribed by department regulation or not consistently enforced tend to become institutionally acceptable. This is represented by Robert McCormack's Normed Corruption Model (Fig. 1).

According to McCormack's model, to the extent that written directives serve to give notice of leadership expectations and to establish an objective ground for the imposition of corrective action, the value of "A" shrinks: "To the degree that the leadership of a police agency specifically defines marginal activities it considers to be unethical , communicates this disapproval unequivocally and fairly sanctions officers who transgress, normed corruption is reduced to its lowest common denominator" (McCormack 1996:241). As a result, written directives have the effect of extending the scope of management oversight. An officer working with explicitly defined procedures and regulations who is in violation of one or more of them cannot take cover in protestations of ignorance. In fact, the consistent application of written directives can actually provide an excuse for the avoidance of deviant conduct akin to the hesitation prompted by the physical presence of supervisory personnel (McCormack 1996: 244). Written directives thus serve the police manager as potent weapons in the fight against the systemic causes of police deviance.
III. Penalty Schedules as a Component of a System of Written Directives
The particular form of written directive that is the focus of the present study is the Penalty Schedule. Though it is generally acknowledged that "even departments with a high potential for leadership will suffer without a system of written directives to insure adequate direction and control" (Police 1977:19), agreement about the value of penalty schedules is less widespread. From the perspective of police managers, there are a number of reasons that could explain hesitation in adopting a penalty schedule. In general, police executives and supervisors may be concerned about the effect a penalty schedule would have on their discretionary authority to correct misconduct as they see fit, or as the circumstances demand. This concern may be personal, operational, legal or motivated by collective bargaining constraints. On the personal level, a police executive may be reluctant to adopt any written directive which gives the appearance of constraining their mandate to control the behavior of their personnel. In disciplinary matters, this may include but is not limited to, weighing the impact of particular disciplinary measures on, the department as a whole, on the political climate of the community, or on the careers of individual officers. At the operational level, the executive may be concerned about the risk of over-bureaucratization in the proliferation of directives. Legally, the executive may be concerned about liability exposure, questions of consistency with other legal obligations, or considerations over civil rights of their personnel. Issues of consistency with current collective bargaining agreements may also cause reluctance. Though identifying the exact cause of the ambivalence towards penalty schedules apparent amongst police executives would be difficult, these concerns, along with conservatism (in the absence of any overwhelming consensus or tradition of use), are likely suspects.
A. Responses to Concerns about the Adoption of a Penalty Schedule
Before consideration of the affirmative case for the adoption of penalty schedules within a written directive system, it is thus advisable to review these potential sources of reluctance. Conservatism is a common source of concern over potential policy changes. The principle of conservatism, expressed in the well-worn expression "If it isn't broken, don't fix it," has much to recommend it. Experience, supported by history, provides each of us with many examples of the unfortunate consequences of hasty or ill-conceived action. The lessons of experience also reveal that what is often good advice can, if taken as a general rule of action, serve as a hindrance to effective and efficient administration. Especially in bureaucracies, resistance to operational reform can be a significant obstacle. The situation is even more precarious when operational shortcomings are evident. If "it is broken," unwillingness to consider fixing it can lead to operational failure. In sum, conservatism by itself is never sufficient justification for resistance to reform.
Turning to the more specific concerns about the potential limits to the discretionary authority of police executives, it should be recognized that none of them exclude the possibility or desirability of implementing a penalty schedule. To begin with, schedules can and likely should recognize the authority of the police executive to resolve any disciplinary situation outside of the context of the schedule should the situation warrant it. Given that the ultimate responsibility for the effective administration of an agency lies with the executive, it would be unreasonable to impose undue constraint on their supervisory powers. Likewise, though the fear of the needless proliferation of directives is a real one, it should pose no barrier to directives with legitimate operational value. Though the value of penalty schedules has not yet been established, the case should be decided on its merits. Again, executive concern over the possible legal implications of a penalty schedule is legitimate, but not fatal. As in the case of every directive, care should be taken to produce a document that is consistent with legal standards and the ruling body of law. In the case of penalty schedules, special attention should be paid to conformity with the civil and constitutional rights of the employees. Finally, the constraints imposed by collective bargaining agreements impose no special burden on penalty schedules. Like all policies, a schedule will either be in conformity with existing agreements, the subject of a waiver, or one of the issues taken up by the department in the next contract negotiation. In none of these cases then, are concerns about the adoption of a penalty schedule legitimate.
B. The Case for the Adoption of a Penalty Schedule
Having dealt with these concerns, it is necessary to establish the operational value of penalty schedules. There are three issues facing police managers to which a penalty schedule offers significant contributions: consistency in discipline, direction and control of supervisory discretion, and encouraging and maintaining public confidence in department disciplinary procedures.16 The central finding of the present study is that the benefits a penalty schedule offers to the police executive in addressing these issues provides ample justification for the adoption of a schedule as part of a system of written directives.
1. Establishing and Maintaining Consistency
As has been noted repeatedly above, consistency is of fundamental importance in the formulation and implementation of any written directive. This is especially true for those directives concerned with disciplinary policies. Consistent discipline sends out the important message that the department takes its policies seriously, " disciplinary sanctions commensurate with the seriousness of the offense that are imposed fairly, swiftly, and consistently will most clearly reflect the commitment of the department to oppose police misconduct" (Rights 1981:158). In addition to raising serious questions about a department's commitment to its own ideals, inconsistent disciplinary policies can have a number of unfortunate effects on personnel including: loss of morale, encouragement of skepticism about a department's disciplinary procedures, and formation of attitudes critical of department management. The IACP, while making no official recommendation on the adoption of penalty schedules in a written directives system, recognizes that a schedule, "eliminates a great deal of potential abuse or inconsistency in setting penalties for misconduct" (Police 1977:78).17
Given the complexity of any sizeable police agency, differences between the values of management and personnel and between the various levels of management will be apparent at the operational level. In matters of discipline, these differences will commonly be apparent in variation of disciplinary remedies levied by supervisors. Not only does this variation increase the risk of the development of "normed corruption", but these differences can also place a significant burden on the operational resources of a department. If there is no common disciplinary ground, officers will quite naturally be inclined to devote a portion of their time to identifying the informal disciplinary guidelines. They might also be inclined to hesitate before acting in a procedurally complex situation due to their uncertainty about the possible consequences of their actions.18 Giving notice through explicit policy that differences in attitudes among supervisors will not impact the handing out of discipline does much to alleviate the distracting and sometimes debilitating concerns of the personnel subject to this discipline. This in turn will have a positive impact on the ability of the executive to effectively direct officers towards operational goals.
The impact that a schedule can have on the attitudes of personnel reveals another advantage of schedule adoption. The openness and fairness suggested by a schedule can serve to discourage the formation of attitudes common to the police subculture which often serve as barriers to the effective management of police misconduct: misplaced organizational loyalty and the 'code of secrecy.' While these problems are certainly complex enough to resist easy resolution by a single management device, an explicit and consistently implemented penalty schedule provides a unique response to these attitudes. The genesis of both of these attitudes is typically identified in the socialization of recruits into the "police worldview," a process that begins in training (Kappeler, Sluder, and Alpert 1998:88ff.). Though initially constructed as the contrast between the police and the public they serve, this oppositional worldview is often particularized as a patrol vs. management opposition: "The main result of training is that the recruit soon learns that it is his peer group, rather than the brass which will support him and which he, in turn, must support" (Van Maanen 1997:94). The suspicions of the motives and actions of supervisors which result from this sort of socialization contributes to both the "blue wall" and the code of secrecy. The consistency in discipline established by a penalty schedule serves to diminish the ground of this sort of mistrust by reducing the subjective and potentially arbitrary and punitive character of department discipline. The belief that they will be treated fairly and objectively decreases the incentive that an otherwise honest officer has to participate in actions which would undermine established disciplinary procedures.
2. Managing Supervisory Discretion
The second issue faced by police managers addressed by the adoption of a penalty schedule is the direction and control of the discretionary behavior of supervisors. While a general function of written directives is to direct and control discretion, an important feature of a penalty schedule is that the primary focus of its management of discretion is the discretion of subordinate supervisory officers, primarily that of first-line supervisors (sergeants and lieutenants). The complex and critical role played by first-line supervisors is commonly acknowledged by texts on police management.19 According to these resources, it is no exaggeration when John Van Maanen insists that, "At an elementary level, sergeants represent the personification of a police organization's internal control mechanisms" (Maanen 1983:276). This is certainly supported by the IACP's conclusion that "the primary responsibility for enforcing departmental policies rests with first-line supervisors" (Police 1977:47). Given the crucial role played by these supervisors, it might be expected that a significant portion of a police department's organizational resources should be dedicated to facilitating their supervisory functions.
However, not only do the organizational realities of many police departments not facilitate these functions, they often exacerbate the challenges faced by these supervisors. These challenges are substantial. The necessity for the police executive in all but the smallest departments to delegate much of their responsibility and authority to their subordinates puts a significant burden on supervisors. Given that much of the supervision of patrol officers falls to first-line supervisors, they are thus put in the unenviable position of having to balance department expectations with the realities of street policing. As a result, their discretionary decisions have a significant impact on how the department presents itself to the public it serves. The fact that it is not atypical for new sergeants to be promoted after a relatively short time on active duty with a department raises significant questions about their preparation to exercise such an important function. For example, their relative lack of experience makes it difficult to maintain adequate oversight of their often more experienced subordinates. Training can only partially compensate these officers for their lack of patrol experience. Patrol officers who wish to evade the oversight of these supervisors or pressure them to accept certain questionable forms of behavior have considerable resources at their command, resources that can rarely be matched by the less experienced officer (Maanen 1983:282-3). Another difficulty is the problem posed by cadre training. It is not uncommon for supervisors to be responsible for the direction and control of officers with whom they have served since the academy. Of course, this is not an issue that is limited to first-line supervisors, but it is reasonable to assume that it is sharpened for those whose limited experience is well known to the officers with whom they entered the force.
Given the importance of the discretionary activities of supervisors to a department's efficient and effective functioning, it is legitimate to expect the police executive to provide a considerable degree of direction and control over a department's supervisors. While this management of supervisory discretion can and no doubt should take a variety of forms, the formulation of directives aimed at mandating explicit limits to this discretion is highly desirable. Given the prominence of this discretion in the disciplinary system in particular, directives aimed at controlling the imposition of discipline are especially important. A schedule of penalties makes the job of a relatively inexperienced supervisor easier by insulating them from the pressures they may feel from their subordinates or other supervisors. The more experienced judgement of long-time supervisors [which may actually be more susceptible to variation from department policies by divisive subcultural attitudes (Hunter 1994:175)] is also supported. With strict limits on their discretion to impose discipline, supervisors are relieved of much of the ambiguity of what are potentially the most difficult and troublesome supervisory decisions they have to make. As was mentioned above, a schedule also offers them protection from unwarranted personnel complaints. Supported in this way, supervisors can dedicate their energies to their role as the "face" of department procedures and policies.
3. Encouraging Public Confidence
A final advantage offered by a penalty schedule is the effect it can have on public perceptions of a police department. The importance of public respect to police effectiveness has been recognized since Sir Robert Peel affirmed it in his Principles of Law Enforcement (Radelet and Carter 1994:9). Indeed, it is well documented that while the majority of the public has a favorable attitude toward their local police (Flanagan and Vaughn 1995), reports of police misconduct attract considerable attention and raise significant public concerns. Kappeler, Sluder, and Alpert have identified a number of explanations for this including, the "hypocrisy of the behavior," the belief that misconduct acts as a corrupting influence, the recognition by the public that the police have a unique and privileged function, the awareness of the economic cost of police misconduct, and the perception of a possible threat to public safety (Kappeler, Sluder, and Alpert 1998: 8-10). These concerns are magnified in a situation when there is a lack of clarity about department disciplinary procedures. Perceived ambiguity in disciplinary procedures suggests to the public that the department is not committed to responsible administration (Potts 1983). It leaves open the possibility that a department will fail to recognize, or even allow, officers engaged in deviant behavior to continue operating at the public's expense. Adoption of a penalty schedule serves notice to the public that a department takes its disciplinary procedures seriously and that it will not tolerate variation in the application of corrective measures.
A. Limits to the Effectiveness of Penalty Schedules
Despite the documented value to police managers of written directives, both in general and, more particularly, in controlling misconduct, it is important to note that directives by themselves are insufficient to the establishment of effective administrative direction and control. A penalty schedule, while arguably a crucial part of a directive system, has a limited impact on the operational and ethical climate of a police agency. There is even the risk that implementing such a schedule could serve to distract officers and management from the complex organizational realities which structure and support deviant behaviors.
It is thus recommended that the adoption of a penalty schedule be made as part of an organization wide commitment to the effective management of police misconduct. This commitment must start with the police executive. The executive must provide an unwavering example of the highest standards of personal and professional behavior, and demand the same from subordinate officers. At the operational level, such a commitment would likely include:20 the analysis and, if necessary, reform of selection and training techniques, the development of a fully realized system of written directives (including a penalty schedule), open and transparent channels of communication between all ranks and grades (the primary function of which is to encourage appropriate understanding of and feedback on department policies), the development of techniques to identify and control deviant behaviors, and an appropriately staffed and supported internal affairs department. While no one management strategy offers the realistic promise of controlling police misconduct, the adoption of a penalty schedule within the context of an overall commitment to the highest possible standard of integrity offers significant benefits.
IV. Analysis of Penalty Schedules
A. Preliminary Analysis
A first review of the schedules received reveals a number of common elements. First, the schedules are tightly integrated with the departments' rules of conduct. This integration is typically accomplished by classifying possible infractions and then structuring the schedule according to these classifications. The resulting integrated disciplinary directive will be hereafter referred to as a disciplinary matrix. Secondly, with one exception, the schedules received are established within the framework of a progressive disciplinary system. Progressive discipline is a management strategy mandating that an officer's disciplinary and work history will be taken into account when determining an appropriate disciplinary mechanism. Though the exact form of progressive discipline in use varies from department to department (see below), typically, multiple offenses within the same category result in escalating disciplinary measures. Finally, consistent with current trends in police management, most notably the community policing movement, the implementation of the disciplinary matrices is decentralized,21 though in every case, the absolute discretion of the police executive to impose discipline as they see fit is affirmed. Though not always specified, most of the departments surveyed linked escalation in either category or disciplinary procedure to a shift in disciplinary responsibility up the chain of command.
Though not as consistent as the structural elements just catalogued, an examination of department rationales for the implementation of a schedule of penalties is also revealing.22 Perhaps the most common justification for the inclusion of such a schedule in a department's policies is the need for consistency in the imposition of discipline. This is consistent with the analysis above that identified consistency as an important rationale for the adoption of a penalty schedule. Though it is possible that such consistency could be encouraged in other ways,23 as already indicated, the International Association of Chiefs of Police identify schedule implementation as an effective tool in this regard (Police 1977:77-78). Another noteworthy element of schedule rationales is the recognition of the role that schedules play in insulating the disciplinary process from abuse. This too dovetails with the previous discussion which located a significant benefit in the control that a penalty schedule offered the executive over the discretionary actions of their supervisory subordinates. Many of the departments surveyed recognized that the implementation of a schedule of penalties can play a role in encouraging public confidence in the departments' disciplinary procedures. Finally, a few departments indicated that consistency with general policy requirements served to justify schedule inclusion.
On the basis of these considerations, it is possible to provide a schematic overview of the schedules submitted for review (fig. 2).24
| Disciplinary System | Classification of offenses | Disciplinary range | Administration | |
| Charlotte- Mecklenburg 1/2/98 |
Progressive, with stated emphasis on remedial discipline. | 4 categories: A-D | Counseling, oral reprimand, written reprimand, variable suspension, termination. | Decentralized. Review by Chain of Command Review Board. Composition of board determined by severity of offense. Oversight by Internal Affairs. Chief has absolute discretion. |
| Chicago 1/13/93 |
Hybrid. Less serious transgressions handled progressively, more serious on a case by case basis. Penalty Schedule only for less serious. | 2 categories: more or less severe. 3 types of less severe: Fitness, Vehicle, Other |
Reprimand, 1-3 days suspension. Any other appropriate discipline at discretion of supervisor. | Decentralized. Supervisor recommends action in consultation with commanding officer. Oversight by Internal Affairs. |
| Indianapolis 9/2/98 |
Progressive, with direction to consider verbal counseling when appropriate. | No categorization. | Counseling, written reprimand, variable suspension, demotion, termination. | Decentralized. Use of matrix mandated. Flexibility and limitations of matrix requires a great deal of discretion. Chief has absolute discretion. |
| Knoxville 1/30/98 |
Progressive | 3 categories: A-C, 2 types: personal and professional. | Oral reprimand, written reprimand, variable suspension, demotion, dismissal. | Schedule guideline only. Investigating supervisor has full discretion. Disciplinary authority determined by severity of action. Chief has absolute discretion. |
| Los Angeles May 1998 |
Hybrid. Infractions prompting minor to moderate discipline handled progressively. All others handled with judicial review. | Categorization by type. | Penalties categorized by seriousness. Highest level of seriousness prompts shift to judicial system (board of rights). | Decentralized. Not a schedule (identified as historical, not prescriptive). Internal affairs reviews all disciplinary procedures. |
| Minneapolis March 1996 |
Progressive. Emphasis on remedial discipline. | 4 categories: A-D. 3 classes: procedural, class II, class I, 3 types: procedure, neglect of duty, conduct and behavior. | Training, counseling, restitution, oral, written, suspension, demotion, dismissal. | Decentralized. Overview by disciplinary panel constituted on a case by case basis. |
| New York 10/6/95 |
Case-by-case basis. | 2 categories: command and judicial. Only command handled by schedule. 2 classes of command: schedule A (less serious) and schedule B. | Oral reprimand, written reprimand, change of assignment, loss of vacation or accrued time (variable), loss of permission for outside employment, restriction of overtime. | Command discipline only open to
commanding/ executive officer. Oversight provided by chain of command. Subject officer may opt for judicial review. |
| San Francisco 12/1/94 |
Hybrid. Progressive recommendations offered for least serious infractions. Others handled on a case by case basis, with progressive discipline where appropriate. | 4 categories: A-D. | Reprimand, variable suspension, fine, termination. | Affirmed as guidelines only. Serious offenses typically handled by independent police commission. Discretion of chief affirmed. |
Fig. 2. Schedule Overview. Classification of offenses according to: categories (defined by seriousness of offense); classes (defined by legal status of offense); and types (defined by operational requirements).
A. Disciplinary Systems
The most effective disciplinary system is one that combines the reinforcement of the right set of values in all employees with behavioral standards that are established in clear policies, procedures and rules that are consistently and fairly applied.
"Discipline Philosophy," St. Petersburg Police Department (reprinted in (Kappeler, Sluder, and Alpert 1998)).
This passage from the St. Petersburg, Florida Police Department policy manual neatly captures the prevailing attitudes on discipline evident in the received schedules. Despite significant differences in disciplinary mechanisms and approaches, there is a shared understanding that discipline is fundamental to the control and effectiveness of a police agency, and that the primary aim of disciplinary procedures is to encourage integrity by holding officers accountable to high standards of behavior. The differences apparent between the various schedules can be organized according to differences in the emphasis of their disciplinary philosophies and differences in disciplinary strategy.
The disciplinary philosophy of a department is due in large part to the attitudes of the executive (Carter 1994:356). At least three general disciplinary philosophies can be identified: punitive, remedial or mixed. Disciplinary systems based on a punitive philosophy are retributive in nature. The advocate of a punitive system identifies punishment for infractions of the department code as the object of disciplinary activity. Remedial systems are primarily corrective in nature. The advocate of a remedial system locates the goal of discipline in the correction of the sanctioned behavior. Mixed systems attempt to make pragmatic use of both punitive and remedial measures. For the advocate of the mixed system, the goal of discipline is not properly punishment or correction, but the encouragement of appropriate behavior.
Not surprisingly, all of the schedules reviewed exhibited a mixed disciplinary system. The differences were in the emphasis of either remedial or punitive measures. In mixed systems, the deciding factor in shifting between remedial and punitive remedies is typically the seriousness of the triggering infraction. Charlotte-Mecklenburg, Indianapolis and Minneapolis stand out as departments which place strong emphasis on the importance of remedial correction for less serious offenses. Minneapolis goes so far as to suggest what it calls "Proactive Corrective Action" strategies as possible responses to all categories of offense. For the three most serious categories, the remedial suggestions are accompanied by punitive ones. While none of the departments were openly punitive in focus, the schedules of Chicago, Los Angeles, and New York offer little to the supervisor in the way of suggestions for remediation.
Differences in disciplinary strategy were more marked. In this context, disciplinary strategy refers to the stance a department takes on the value of progressive discipline. There are three general positions on progressive discipline evident in the schedules. Charlotte-Mecklenburg, Indianapolis, Knoxville and Minneapolis all advocate the progressive application of disciplinary measures. Though the rate and scale of the progression differs from department to department, all of these schedules recognized the importance of tracking officers within the disciplinary system and making disciplinary decisions based, at least in part, on their disciplinary history. The schedules of Chicago, Los Angeles and San Francisco exhibited hybrid strategies. Both Chicago and Los Angeles advocated progressive discipline of that limited set of offenses covered by their schedules, but a wide range of offenses were exempted from their schedules and no commitment to treat them progressively was evident. San Francisco's schedule makes a commitment to the idea of progressive discipline, but qualifies it both in word and by offering progressive remedies for only the most minor offenses covered by their disciplinary matrix. New York imposes discipline on a case-by-case basis.
Recommendations
1. The adoption of a penalty schedule should include a strong and meaningful commitment to remedial disciplinary measures.
An important goal of a penalty schedule is the control of police misconduct. While punitive disciplinary measures have a necessary role to play in the accomplishment of this goal, "An important element in establishing responsibility in the police system is a reorientation from negative (punishment-centered) and repressive structures to positive and corrective structures" (Potts 1983:83). Remedial measures not only provide effective and efficient means of controlling many forms of misconduct, they also support other management goals: namely, training and employee retention. Unlike the antagonistic relationship encouraged by punitive measures, remedial discipline is fundamentally cooperative in nature. It reinforces department policies by identifying aberration from these policies as the source of the problem and encouraging the disciplined officer to recognize the harm caused by such aberration and the value to them and to the organization of consistency with department values. This in turn empowers the officer and helps them see themselves as important to the overall success of the department. The increased job satisfaction that results from this sort of empowerment is particularly important at a time when private industry and federal agencies are aggressively recruiting the best officers from local agencies.
2. The adoption of a penalty schedule should include a commitment to progressive discipline. The progressive elements of a disciplinary strategy should be integrated with departmental document retention policies.
Tracking officers through the disciplinary system is an important control mechanism. A progressive system offers a department an effective technique for the detection and control of police misconduct. Without a progressive system, departments run the risk of failing to recognize problem officers.25 If a progressive system is integrated with previously existing document retention policies, objections from officers or collective bargaining units can be circumvented.
A. Offense Classification and Range of Discipline
The analysis indicates that approximately 50 percent of sample officers report a basic understanding of disciplinary procedures, but do not express full comprehension of these regulations it can be inferred that close to 50 percent of the sample indicated either uncertainty or lack of understanding of these procedures.
"Perceived Understanding of Disciplinary Procedures," (Police 1977:232)
One of the most troubling results of the attitudinal surveying done by the IACP is the indication of continued officer confusion about disciplinary procedures. A silver lining identified by their research is that those departments with "accurate delineation of and instruction in disciplinary procedures" (ibid.) had the lowest levels of confusion.
All of the departments submitting schedules made some attempt to increase the clarity and definition of their disciplinary procedures by establishing a code of conduct and identifying the range of disciplinary measures available to supervisors. Only Indianapolis offered no internal classification of offenses.
When offered, offense classification was provided by some combination of three factors. Classification by category (defined by the seriousness of the offense) was the most common. Departments would typically organize identified offenses into 2-4 categories. Though there was some overlap (use of alcohol and drugs on duty, felonious activity, conduct unbecoming, and insubordination are examples of behaviors commonly identified as belonging to the most serious category), consistent with research previously discussed (Barker and Wells 1982), there was a significant degree of variability as well (different departments identified violation of residency and telephone requirements, violation of crowd control policy and failure to conform to standards for release of information to the media as belonging to the most serious category). Classification by type was the second most common. Classification by type relies on specific operational requirements like vehicle use, weapon use, or property handling. Only one department, Minneapolis, included classification by the legal status of the offense.
There was a significantly lower degree of variability in the specification of disciplinary range. As might be expected, those departments with strong commitments to remedial discipline typically had the widest range of disciplinary alternatives. In the case of Minneapolis, for example, alternatives ranged from various retraining techniques to dismissal. Common to all was a range that extended from fairly moderate measures like reprimands up to dismissal.
Recommendations
3. The adoption of a penalty schedule should include detailed classification of offenses and explicit statements of the range of possible disciplinary measures.
Given the clear connection between procedural precision and employee understanding, a department should not pass on any opportunity to minimize the ambiguity of their written directives. Without recommending any particular combination of classificatory schemes for offenses, it should be noted that each of the schemes discussed offers certain advantages. Classification by category allows for easy integration of rules of conduct with a penalty schedule in the form of a disciplinary matrix. Classification by type is perhaps the most employee-friendly, as type classification typically mirrors the operational realities they work within. Classification by legal status aids in the identification of appropriate level of supervisory oversight. Misconduct that is in violation of criminal codes, in addition to violating department policy, should doubtless be handled by the most senior officers.
4. The adoption of a penalty schedule should include the widest range of disciplinary alternatives practicable.
Consistent with the recommendation favoring remedial discipline, it should be recognized that a broad range of corrective techniques offers the best chance of effectively managing the wide range of misconduct exhibited by officers. No classification of offenses is going to be able to identify all of the possible violations of department standards. Recognizing this fact, departments should allow themselves the flexibility to deal effectively with new and unanticipated forms of misconduct. It is of particular importance that the police executive have the full range of corrective measures at hand. The ultimate responsibility for the conduct and character of the department is theirs, and they should have every tool at their disposal.
5. The adoption of a penalty schedule should include a commitment to regular review and maintenance of disciplinary directives. This review process should seek to include the input of employees of all ranks and grades.
Not only do directive systems that are outdated or inconsistent not function correctly, they can actually have a negative effect on departmental operations. In addition, a reactive approach to directive review risks exposing departments to embarrassment or civil liability. For these reasons, the IACP recommends that, "there should be a total review of all directives on a semi-annual basis" (Police 1977:28). Including employees in the review process not only reinforces their understanding of department policies, but also encourages their personal identification with the resulting directives.
A. Administration
It is clearly in the interest of police chief executives to initiate effective change in their administration of internal discipline. Otherwise, public or police employee groups, or court decisions in civil litigation, may force executive to follow a course other than the one they would have chosen, and thus diminish their control over the agency.
Report on Police, (Goals 1973: 470)
It is in the area of administration that the limited scope of penalty schedules, and thus the necessity of implementing them in the context of an organization-wide commitment to the production of the highest standards of integrity, becomes evident. The 'effective change' called for by the National Advisory Commission on Criminal Justice Standards and Goals cannot occur piecemeal. The implementation of a penalty schedule without the development of appropriate administrative mechanisms would serve little purpose. The best of the schedules provided to the Crime Commission reveal full awareness of this fact. What distinguishes these schedules from the others is that they are presented as 'disciplinary processes' rather than as merely guidelines or procedures.26 The active sense of the term 'process' is not misleading. It highlights the crucial recognition that, "Discipline should not be viewed as a distinct aspect of management, but rather as a part of the administrative process which maximizes the realization of performance norms and minimizes the likelihood of undesirable behavior (Police 1977:9).
The importance of this focus on disciplinary process is due in part to what has previously been recognized as the open-ended character of the management of police misconduct. The weakest responded by refusing to offer any specific direction whatsoever. The schedule from the LAPD refuses even the title "schedule," identifying itself as a "Historical Document of Penalties." Recognizing that a penalty schedule cannot "accurately, fairly, or consistently address every situation", the LAPD document refuses to address any. Supervisors are expressly denied the assistance of relying on, or even quoting, these historical penalties. The strongest, Minneapolis and Indianapolis in particular, grant full recognition to the difficulties of imposing standards of discipline in particular cases, but refuse to shrink from the task, demanding that supervisors conform to the range of discretion set by the schedule. The others range from weak to strong, with most demanding some degree of conformity.
Despite this significant area of disagreement, broad areas of agreement on the administrative mechanisms appropriate to schedule implementation are evident in the received schedules. They include: decentralization of the disciplinary process, recognition of the need for oversight of the process, acknowledgement of the rights of the employee to protection under the law and to dispute disciplinary findings, and explicit reference to the absolute discretionary authority of the police executive.
Recommendations
6. The adoption of a penalty schedule should be accompanied by the creation of a disciplinary matrix.
A disciplinary matrix represents the unified whole of a department's disciplinary policies. It is the combination of a carefully delineated classification of offenses and a wide-ranging set of corrective techniques. This whole is put into process with the inclusion of progressive structures which recognize that disciplinary requirements change under changing circumstance. A matrix should thus include explicit reference to the disciplinary escalation necessitated by continuing misconduct.
7. The adoption of a penalty schedule should include provisions for the detailing, investigation and disposition of allegations of misconduct made against officers and employees keyed to the disciplinary matrix. Conformity to this process should be demanded of every supervisor.
The wide variety of specific mechanisms presented by the schedules, and the difficulty of making any empirical determinations as to their relative effectiveness, makes the recommendation of specific mechanisms inadvisable. However, some general recommendations in this regard are in order. First, the stakes in the management of police misconduct are too large to justify adopting a weak approach. The disciplinary matrix should include the requirement that all supervisors conform to its specifications. The only person who should be given the authority to alter these specifications is the police executive.27 Second, consistent with current trends the disciplinary process should be decentralized with significant disciplinary responsibility granted to first-line supervisors. Granted, this exposes these officers to some risk. However, if much of this responsibility is remedial in nature, their close connection to the officers they supervise should enhance the overall effectiveness of this type of discipline. Third, this exposure of the first-line supervisors makes it imperative that the matrix include specific acknowledgement of the limits of their discretion in the form of a shift in disciplinary responsibility up the chain-of-command for more serious infractions. Establishing set procedures for the composition of chain-of-command review boards would ease this pressure on first-line supervisors. Finally, all of the usual bureaucratic procedures for the investigation of allegations, the notification of the alleged offender and the disposition of the allegations should be in place.
8. The adoption of a penalty schedule should include the adoption of strict oversight mechanisms to ensure that the allowed range of supervisory discretion is being adhered to.
There are a variety of opinion on this issue evident in the received schedules. The major split is between those schedules that call for chain-of-command review and those calling for review by some central agency within the police structure (typically, the internal affairs department). In this case, however, the importance of consistency, both to discipline in general and to the justification of the adoption of penalty schedules in particular, weighs in on the side of the centrists. In large departments, the sheer variety of supervisors who may be called upon to exercise oversight cast serious doubt on the capacity of the organization to maintain consistent standards. A properly staffed and equipped internal affairs department, strongly supported by all levels of management and (ideally) employees, would be in a much better position to insure that these standards were met. Submission of all disciplinary decisions issuing from supervisory personnel, reviewed and tracked by Internal Affairs, would also serve as an effective mechanism for the detection of problem officers.
9. The adoption of a penalty schedule should include regard for the rights of the employee.
All disciplinary procedures should be consistent with all applicable legal and civil standards. At the very least, steps should be taken to insure protection of due process rights and rights to appeal.
10. The adoption of a penalty schedule should include explicit reference to the discretionary authority of the police executive to implement any disciplinary measure. It should also include a statement by the executive expressing commitment to the policies that have been established.
The importance of the first point has already been established. The second point warrants some consideration. It has been argued from the beginning that a crucial element in the management of police misconduct is the cooperation of the entire organization. This cooperation can only be achieved if the members of the organization believe that it is in their best interest. An open acknowledgement by the police executive indicating that they are willing, except under extreme circumstances, to submit to the established policies provides strong encouragement for this belief. Few forms of leadership are more effective at motivating subordinates than leadership by example.
V. Conclusion and Recommendations
It is the considered judgment of the Crime Commission that the adoption of a penalty schedule offers significant benefits to a police department's efforts to manage officer misconduct. The contribution made by a penalty schedule to ensuring disciplinary consistency, managing supervisory discretion and encouraging public confidence in department operations offer strong support for this conclusion.
Review of penalty schedules from participating departments has led to the recommendation that the adoption of a penalty schedule include:
1) A strong and meaningful commitment to remedial disciplinary measures;
2) A commitment to progressive discipline;
3) A detailed classification of offenses and explicit statements of the range of possible
disciplinary measures;
4) The widest range of disciplinary alternatives practicable;
5) A commitment to regular review and maintenance of disciplinary directives;
6) The creation of a disciplinary matrix;
7) Provisions for the detailing, investigation and disposition of allegations of
misconduct made against officers and employees keyed to the disciplinary matrix;
8) The adoption of strict oversight mechanisms to ensure that the allowed range of
supervisory discretion is being adhered to;
9) Regard for the rights of employees; and
10) Explicit reference to the discretionary authority of the police executive to implement
any disciplinary measure. It should also include a statement by the executive expressing
commitment to the policies that have been established.
While not offering immunity from the effects of police misconduct, the adoption of a penalty schedule that is part of an overall commitment by the department to the highest levels of integrity does hold out the promise of a disciplinary system that functions at the highest possible level.
Notes
1
The seven peer cities or Metropolitan Statistical Areas are Atlanta, Birmingham, Charlotte, Dallas, Indianapolis, Louisville and Nashville.2 Austin, Boston, El Paso, Houston, Los Angeles, New York, San Antonio, San Diego and San Francisco have all experienced reductions in crime of 10% or greater during the 1990s.
3
The Houston Police Department is in the process of rewriting their manual and thus could not comply.4
Inquiries were made to the police departments of Chicago, Miami, Minneapolis, Washington D.C. and Seattle. The rationale for the choice of these cities varied. In the cases of Chicago and Seattle, the rationale was geographic diversity and department size. For Miami and Washington D.C., highly publicized reform efforts were the motivation. Minneapolis was included at the suggestion of the Memphis Police Director.5
Of particular note is the work done by the International Association of Chiefs of Police (IACP) as part of their Managing for Effective Police Discipline (Police 1977). Relying on extensive fieldwork and questionnaire assessment of officer opinion, this study focussed on the impact of written directives on management and officer perceptions of the effectiveness of disciplinary policies. While acknowledging that attitudes provide only a partial picture of the overall effectiveness of directives, the results of this study, combined with common management principles, gave the IACP the confidence to assert that, "Written directives serve as the foundation for effective discipline" (22).6
According to Department of Justice figures for 1997 (the most recent available) there were 381,000 sworn officers working full time for departments with complements of 100 or more. When staffing levels of smaller departments are added, the number of officers rises above 600,000 (Reaves, Goldberg, and United States. Bureau of Justice Statistics 1999; Willing and Johnson 1999).7
A good general history of American law enforcement is(Johnson 1981). For an overview of the history of police deviance see (Kappeler, Sluder, and Alpert 1998), Chapter Two.8
The variety of opinions revealed by Barker's research on what constitutes misconduct and how it should be dealt with is quite startling. This variety is no doubt mirrored in the opinions of members of individual departments.9
Examples of the difficulty of this task are common. The ruling in Terry v. Ohio (392 U.S 1 (1968)) attempts to clarify the conditions under which it was appropriate for officers to perform 'stop and frisks.' As James Fyfe suggests, the response of police managers to this direction has been ambivalent (Fyfe 1998). Fyfe's analysis suggests that this ambivalence is explained by the conflict between the manager's recognition of the strategic value of Terry stops and what they perceive as the limitations on effectiveness imposed by the clarification of police procedures by the courts. It is the competing demands of effectiveness and control that makes the police administrator's job difficult.10
There are some exceptions to this rule. In general, resistance to formalization of police operations in written directives has come from two camps: critics of professionalization like James Q. Wilson (Wilson 1968:67ff.) or from advocates of decentralized management styles (cf. (Cordner 1989)). The rise in popularity of community policing has also produced questions about the appropriateness of written directives for the control of police function, especially that of order maintenance (cf. (Wilson and Kelling 1982)).11
As established by the United States Supreme Court in Monell v. Department of Social Services (436 U.S. 658, 98 S. Ct. 2018). See (Carter and Barker 1994:18-19).12
This emphasizes the importance of management review of directive systems. According to the Guidebook for Law Enforcement Manual Development, "any policy and procedure manual, no matter how well written, will need periodic review, updating and revision"(1980:4-4) .13
Though not an exhaustive survey, the following provide an indication of the legal parameters of a "good faith" defense. Williams v. City of Albany, 936 F.2d 1256, 1259 (11th Cir. 1991), "In considering the good faith component of the action, the courts apply an objective standard: whether a reasonable officer would have believed that his conduct violated plaintiff's clearly established rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1981), "We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Briggs v. Malley, 748 F.2d 715, 718 (1st Cir. 1984), "The conduct of state and government officials is to be measured by an `objective reasonableness' standard; conduct which violates `clearly established statutory or constitutional rights of which a reasonable person would have known' will support section 1983 liability. . . .it is also applicable to police officers for section 1983 liability."14
Cf., for example, Ford v. Brier, 383 F. Supp. (E.D. Wis. 1974). I would like to thank Kathleen DeSoto, JD for here assistance with the case law.15
Liability under Section 1983 is one of only many potential sources of civil liability for departments and officers. Another significant potential source is state tort law (del Carmen 1994). The remarks concerning Section 1983 are not intended as an exhaustive overview of the legal implications of the adoption of written directives by a police agency. They should not be considered to offer any legal advice.16
One additional argument that, while not perhaps establishing any independent justification for the adoption of a penalty schedule, can provide some additional incentive for adoption is the fact that CALEA accreditation guidelines identify a penalty schedule as a necessary part of written disciplinary guidelines (26.1.1-26.1.5). Irregardless of a department's present stance on CALEA accreditation, establishing written directives in accordance with CALEA standards would facilitate accreditation if it were to become an organizational goal.17
The IACP study of the attitudes of police personnel discussed above found that in general officers have little confidence in the fairness of disciplinary review procedures. This was particularly evident in those departments with inadequately defined disciplinary directives (Police 1977: 245).18
John Van Maanen provides anecdotal evidence of the operational burdens of this sort of uncertainty based on field work with a large metropolitan department employing over 1,500 officers (Van Maanen 1978:121ff.). See also (Potts 1983:82ff.)19
Iannone's Supervision of Police Personnel is representative: "In the law enforcement agency, first-level supervisors are of special importance because of the great need for teamwork. Upon them rests most of the responsibility for providing the cohesive force which welds the working force into a well-functioning, smoothly operating unit" (Iannone 1987:1-2).20
Determining the exact needs of a department would require specific knowledge of the ethical climate of the department. In their most recent reform efforts, New York City relied heavily on the findings of a "cultural diagnostic" (Commission 1994). The results of this reliance are evident in the dramatic improvements the NYPD has made in altering officer attitudes toward the disciplinary system and in increasing the level of public confidence in the administration of the department (1996). Unfortunately, the fragility of this progress was starkly revealed by the events surrounding the Abner Louima case (Kappeler, Sluder, and Alpert 1998: 274-276).21
"The primary responsibility for enforcing departmental policies rests with first-line supervisors" (Police 1977:47). The move towards decentralization is not a recent phenomenon. It is one of the central tenets of the professionalization movements in policing which takes as its model the military/bureaucratic management system. Two key elements of any such system, "unity of command" and "span of control," establish the framework of a decentralized management system (Iannone 1987; Police 1977; Potts 1983).22
Both the Charlotte-Mecklenburg and Minneapolis schedules are noteworthy for the thoughtfulness and thoroughness of their rationales.23
In conversations with supervisory officers from review city departments lacking a schedule of penalties, the most common responses to queries about considerations of consistency were training of supervisory personnel and chain of command oversight.24
The date of issue of each of the schedules is indicated under the name of the city.25
The fact that New York has not adopted a progressive disciplinary strategy suggest that they may have more lessons to learn from the "Buddy Boys" and Dowd cases, both of which featured officers with long and sordid disciplinary histories that were only compiled and analyzed after being apprehended for extensive corruption (Commission 1994; Kappeler, Sluder, and Alpert 1998).26
The Minneapolis schedule makes this explicit. Although the official title of the document submitted to the Commission is "Minneapolis Police Department Policy and Procedure Inquiries Disciplinary and Range System," at the center of the title page, in the middle of a graphic representing the department's badge is the title that the document deserves, "Discipline Process Manual."27
Any modification of existing policy should be accompanied by appropriate notification of affected personnel.Appendix
A. Model Schedule of Penalties
Note: In order to better exemplify the specific recommendations made, a model schedule of penalties has been provided. Though this schedule highlights the best features of all of the schedules submitted to the Crime Commission for review, it owes a considerable debt to the Policy/Procedure Inquiries Disciplinary and Range System of the Minneapolis Police Department.
Introduction
This penalty schedule is intended to assist supervisory personnel in dealing with violations of the department code of conduct. Effective immediately, all supervisors must adhere to the guidelines established by this schedule when determining appropriate disciplinary measures.
The purpose of discipline is to correct inappropriate behavior. From this remedial perspective, the least intrusive measure or combination of measures that serves to correct the inappropriate behavior should be used whenever possible. If inappropriate behavior continues, additional infractions will be dealt with in a progressive framework.
The aim of the schedule is to establish consistent disciplinary procedures throughout the department. Determining the appropriate disciplinary measure or combination of measures requires that supervisors make use of their common sense, knowledge of departmental procedure, and empathy when considering each individual case. The range of appropriate discipline for each category of offense specified by the schedule allows supervisors to take into account aggravating or mitigating factors. Aggravating factors include: intent; employee record; truthfulness; type and extent of injury; and amount of damage. Mitigating factors include: intent; employee record; degree of culpability; truthfulness; and acknowledgement of error/mistake by employee.
While incidents must be treated individually, the disciplinary ranges specified by the schedule must be used except in cases of extreme extenuating circumstance. The Police Director is the only individual with the authority to lessen or increase the mandated penalty for any violation.
To insure disciplinary consistency, a review board will adjudicate each case. For Category A violations, the board will be made up of the immediate supervisory officer, the immediate supervisor's supervisor, and an officer of the same rank as the immediate supervisory officer. For Category B violations, the board will be made up of the precinct or division Commander, and two of the Commander's immediate subordinates (one of whom supervises the subject employee). For Category C violations, the board will be made up of the appropriate Deputy Chief, the precinct or division Commander , and a Commander from another precinct or division. For a Category D violations, the board will be made up of three Deputy Chiefs, chosen on a rotating basis. The findings of these boards will be forwarded to Commanding Officers and Internal Affairs for tracking and review. The findings of Category C and D boards will also be forwarded to the Police Director for review.
Description of Categories
Category A
Handled at unit level, typically by Lieutenants or Sergeants.
Training
Education
Counseling
Peer Mediation
Restitution
Oral Reprimand
Written Reprimand
Category B
Training
Education
Counseling
Restitution
Written Reprimand
Up to 5 days suspension
Category C
Training
Education
Counseling
Fitness for duty evaluation
Transfer
Restitution
Written Reprimand
Up to 10 days suspension
Demotion
Termination
Category D
Training
Education
Counseling
Fitness for duty evaluation
Transfer
Restitution
More than 10 days to indefinite suspension
Demotion
Termination
Violations by Category
Note: The infractions listed were adopted from the Memphis Police Department Policy and Procedures, Section: Rules. Though they were not intended for inclusion in a disciplinary matrix, they represent an appropriate range of offenses. Increasing the specificity of many of the offenses would assist in the development of an appropriate matrix.
Category A
Category B
Category C
Category D
B. Summaries of Schedules Received
As a supplement to the schematic presentation presented in Fig. 2, each of the received schedules has been summarized below.
Charlotte Mecklenburg PD
Range of Offenses
4 categories: A (most serious)-D (least serious).
Range of Discipline
Oral, Written, Suspension (varies), Termination
Matrix
Affirmed as guidelines only, "Any supervisor may have the discretion to recommend alternative corrective action anytime he or she feels the corrective action called for by the applicable violation category is inappropriate" ("Discipline, Internal Investigations and Employee Rights," p. 2).
Category A: Any appropriate corrective action.
Category B: First offense, one day suspension without pay, suspended.
Second Offense (within 12 months), one day suspension without pay, any suspended penalties
reinstated.
Third Offense (within 12 months), Category A.
Category C: First or Second offense, written reprimand requiring specific corrective
action.
Third and following offenses (within 12 months), Category B.
Category D: First offense, corrective counseling and entry in performance appraisal.
Second offense (within 12 months), documented verbal reprimand.
Third and following offenses (within 12 months), Category C.
Administration
Final authority rests with Chief, whose powers include imposition of discipline in an emergency situation outside of normal administrative channels. Normal operating procedure is through a decentralized "Chain of Command" which focuses on category of offense.
A Chain of Command Review Board conducts hearing for all Category A violations. Final disposition made by the Chief.
A bureau-level Chain of Command Review Board conducts hearings for all Category B violations.
(A and B boards include a peer officer).
Category C and D violations handled by direct supervisors. A bureau-level Chain of Command Review Board may conduct a hearing for a Category C violation if the employee requests it.
Chicago PD
Range of Offenses
2 categories: serious and less serious
3 types: Fitness for duty, Vehicle use, All others.
Range of Discipline
The serious transgressions are handled by the "Complaint Register" process on a case-by-case basis, with no disciplinary guidelines. The less serious transgressions are handled by the "Summary Punishment" guidelines, with punishments ranging from reprimand to 3 days off without pay.
Matrix
"Summary Punishment will NOT be used to process a citizen's complaint"
(Summary Punishment, Addendum #7, issued 1/13/1993). It seems safe to conclude that all
citizen complaints are considered to allege serious transgressions.
Unfit for duty: First, one to two days off. Second, one to three days off. Third and
Subsequent, two to three days off.
Vehicle use: First, reprimand to two days off,
Second and Subsequent, one to 3 days off.
All others: First, reprimand to one day off. Second, reprimand to two days off. Third, one to two days off. Fourth and subsequent, two to three days off.
Reprimand or any other appropriate discipline at discretion of supervisor available for all types.
Administration
Upon report of minor infraction, supervisory officer reviews officer's disciplinary and employment history and in consultation with the commanding officer selects an appropriate disciplinary action. If the officer accepts the action, a copy of the report is forwarded to Internal Affairs. If the action is disputed, the officer can request a Complaint Review Board. Upon reception of the fourth summary punishment, the officer can select to enter the complaint register process. Appeal process including internal and collective bargaining elements.
Indianapolis PD
Range of Offenses
No categorization
Range of Discipline
Counseling form, written reprimand, single or multiple day suspensions without pay, demotion, termination.
Matrix
Sliding penalties based on the seriousness of the offense, the number of violations and in some cases supervisor discretion. There is an explicit recognition of the importance of judgement in the supervision and choice of punishment. The range of punishments reflect the necessity of attending to the unique circumstances under which violations occur.
Administration
Though the matrix, "must be used except in cases of extreme extenuating circumstances," (Bulletin 98-011, Indianapolis PD), the built-in flexibility of the guidelines call for a great deal of discretion on the part of the supervisory officers. The chief of police has final disciplinary authority. Another locus of discretion: list of offenses is limited and sharply defined, calling for even greater discretion for non-defined offenses, "For those incidents not specifically defined by the IPD disciplinary matrix, progressive disciplinary procedure and prior similar disciplinary actions should be reviewed" (Ibid.).
Knoxville PD
Range of Offenses
3 Categories: A (most serious)-C (least serious)
2 types: Professional and Personal
Range of Discipline
Oral, Written, Suspension (varies), Demotion, Dismissal
Matrix
Affirmed as guidelines only. "If in the investigating supervisor's judgement, or
in the review process, other action than that described below is deemed appropriate due to
mitigating or aggravating circumstances, it may be recommended
" (12).
Class A: Any offense, dismissal.
Class B: First offense, 15 day unpaid suspension
Second offense, demotion in rank or pay (not eligible
for promotion for three years).
Third offense, treated as Class A.
Class C: First offense: oral reprimand
Second offense (within 12 months): written reprimand.
Third offense (within 12): 5 day unpaid suspension.
Fourth offense (within 12): Class B.
Each level of offense has its own record keeping guidelines. Prior offenses within a class will be considered as indicated by the matrix or according to record keeping procedures.
Administration
Final authority rests with the Chief, but there is a decentralized model in place that focuses on types of punishment (rather than types of offenses). Officers from the rank of Sergeant to Deputy Chief can administer the following punishments: oral, written, recommend higher level of discipline, emergency relief from duty.
Los Angeles PD
Range of Offenses
Offenses distinguished by type. Relative seriousness of offense indicated by penalty categorization.
Range of Discipline
Penalties categorized by seriousness. A: written reprimand - 4 days suspension; B: 5-9 days suspension; C: 10-14 days suspension; D: 15-22 days suspension; E: shifts evaluation to Board of Rights system.
Matrix
Historical document of penalties, offering guidelines, but not mandating any particular penalties. There is a progressive system in place, with increasing severity of penalties from 1st to 3rd offenses. However, the system is not consistently progressive. Serious offenses or multiple infractions of some less serious ones prompt abandonment of schedule in favor of judicial system (Board of Rights).
Administration
The Los Angeles document does not constitute a penalty schedule. It is identified as a historical document of penalties only. Any prescriptive implications are explicitly rejected.
The discretionary aspects of implementing disciplinary procedures are highlighted, "Managers and employees must recognize that penalty schedules cannot accurately, fairly, or consistently address every situation" (65). Two features of this discretion must be noted: demands that supervisors must take up each case individually and that employees must expect some variation in imposition of penalties.
As a guide to employing this discretion, the Internal Affairs Group reviews all complaints. They serve as a clearing house for all disciplinary procedures and thus can help guide supervisors in selecting an appropriate penalty.
Minneapolis PD
Range of Offenses
4 Categories: A (Class II, minor offense, 3rd in one year = B, no appeal), B (Class II, more serious, 2nd same or similar in three years = C, any three B's in three years makes the 3rd a C), C (Class I, same or similar within five years = D, any three C's in five years = D), D (everything else)
3 Classes: Procedural complaints (least serious, dealt with by immediate supervisors); Class I (complaints alleging violation of Federal or State laws, and excessive force complaints); Class II (complaints alleging non-criminal violation of department policies).
3 Types: Procedure (personal appearance, city property, city vehicles, off duty employment, procedure, firearms); Neglect of duty (attendance, custody of prisoner, reports, court appearances, property/evidence, insubordination, job standards, attentiveness); Conduct and Behavior (substance abuse, citizen interaction, gratuities, exceeding authority, excessive force, cooperation, truthfulness, supervisory responsibility, fighting, safety, abuse of authority, criminal misconduct).
Range of Discipline
Training, counseling, restitution, oral, written, suspension, demotion, dismissal.
Matrix
For B, C and D offenses, there are recommendations for both "Proactive Corrective Action" (PCA) and "Disciplinary Procedures" (DP).
A: Training/Education, counseling, restitution, oral, written (accelerates next to a B).
B: PCA= Training, education, counseling; DP= Restitution, oral (documented), written, up to 40 hrs suspension time.
C: PCA= Training, education, counseling, fitness for duty evaluation, transfer; DP= restitution, written, up to 80 hrs of suspension.
D: PCA= training, education, counseling, fitness for duty evaluation, voluntary leave without pay, transfer; DP= over 80 hrs of suspension up to indefinite suspension, demotion, dismissal.
Administration
Progressive discipline.
Final authority rests with chief, "the recommended guidelines do not in any way diminish the discretion for the Chief of Police to take whatever disciplinary action is deemed necessary to protect and preserve order and maintenance in the Police Department" (1).
To ensure consistency, a Discipline panel adjudicates each case before it proceeds on to the appropriate supervising officer. The panels are temporary and the rank of the officers involved (always 3) is determined by the seriousness of offense. Effort is always made to include the immediate supervisors of the personnel in question in order to ensure that the disciplinary decisions are made in context.
In employing the disciplinary matrix, supervisors are discouraged from moving across disciplinary ranges, "Movements across categories, either up or down, are to be the exception rather than the rule. Strong and specific justification is required to support a recommendation outside the prescribed disciplinary range" (12).
New York PD
Range of Offenses
Two categories: command and judicial. Only command handled by schedule. 2 types of command: schedule A (less serious) and schedule B.
Range of Discipline
Two types: Command (mostly minor infractions) and Judicial (all major offenses and disputed command discipline). Only Command Discipline includes a schedule of penalties.
5 penalties permitted within Command Discipline framework: forfeiture of vacation time; revocation of permission to engage in outside employment for a fixed period of time, not to exceed 30 days, if the violation is related to outside employment; restrict overtime. These penalties do not preclude an oral or written reprimand and/or reassignment.
Matrix
A violations: up to 5 days vacation forfeited.
B violations: up to 10 days vacation forfeited.
Oral and written reprimands are always an option.
Administration
Command discipline only open to commanding/executive officer. On the basis of a supervisor's complaint report, a commanding officer follows a carefully regimented process detailing investigative, notification and oversight procedures. Oversight provided by borough adjutant (focus on consistency) and by chain of command review. Subject officer can opt out of command discipline by requesting judicial review.
San Francisco PD
Range of Offenses
4 categories: A, B, C and D, listed in decreasing severity.
Range of Discipline
reprimand, suspension, fine, termination
Matrix
Goal of progressive discipline stated (2), but only in the case of Class D offenses is any guidance given in the punishment of repeat offenses.
Guidelines for First offenses:
Class A: termination or suspension;
Class B: suspension, termination or fine;
Class C: suspension or fine;
Class D: discipline up to an including a 10 day suspension.
Administration
Chief has full discretion, but most serious offenses are referred to a Police Commission.
Application of penalties on a case by case basis, with discretion guided by reference to 10 parameters: severity of offense, number of acts of misconduct involved, officer's disciplinary history, any deaths or injuries resulting from violation, endangerment of lives, discriminatory intent, damage to property, impact on department's image, disciplinary status of officer, mitigating factors.
Works Cited
Guidebook for law enforcement manual development. Olympia, WA:
Association of Sheriffs and Police Chiefs, 1980.
"NYPD's 'integrity strategy'." The Police Chief 63, no. 4 (1996):
30-34.
Bahn, C. "Police socialization in the eighties: Strains in the forging of an
occupational identity." Journal of Police Science and Administration 12, no.
4 (1984): 390-394.
Barker, Thomas, and David L. Carter. Police deviance. 3rd ed. Cincinnati, OH:
Anderson Pub. Co., 1994.
Barker, Thomas, and Julian B. Roebuck. An empirical typology of police corruption: a
study in organizational deviance. Springfield, Ill.,: C. C. Thomas, 1973.
Barker, Thomas, and Robert O. Wells. "Police administrator's attitudes toward the
definition and control of police deviance." FBI Law Enforcement Bulletin 51,
no. 3 (1982): 8-16.
Carter, David L. "Police disciplinary procedures: A review of selected police
departments." In Police deviance, ed. Thomas Barker and David L. Carter,
355-373. Cincinnati, OH: Anderson Pub. Co., 1994.
Carter, David L., and Thomas Barker. "Administrative guidance and control of police
officer behavior: Policies, procedures and rules." In Police Deviance, ed.
Thomas Barker and David L. Carter, 13-27. Cincinnati, OH: Anderson Publishing Co., 1994.
Commission, Mollen. The City of New York Commission to Investigate Allegations of
Police Corruption and the Anti-Corruption Procedures of the Police Department: Commission
Report. New York, N.Y.: City of New York, 1994.
Cordner, Gary W. "Written rules and regulations: Are they necessary?" FBI
Law Enforcement Bulletin 58, no. 7 (1989): 17-21.
del Carmen, Rolando V. "Criminal and civil liabilities of police officers." In Police
Deviance, ed. Thomas Barker and David L. Carter, 409-429. Cincinnati, OH: Anderson
Publishing Co., 1994.
Flanagan, T. J., and M. S. Vaughn. "Public opinion about police abuse of force."
In Police use of excessive force and its control: Key issues facing the nation,
ed. W. A. Geller and H. Toch. Washington D.C.: Police Executive Research Forum/National
Institute of Justice, 1995.
Fyfe, James J. "Terry: A[n Ex-]Cop's View." St. John's Law Review 72,
no. Summer/Fall (1998): 1231.
Goals, National Advisory Commission on Criminal Justice Standards and. Report on
police. Washington, D.C.: Government Printing Office, 1973.
Hunter, Ronald D. "Who guards the guardians? Managerial misconduct in policing."
In Police Deviance, ed. Thomas Barker and David L. Carter, 169-183. Cincinnati,
OH: Anderson Publishing C., 1994.
Iannone, N. F. Supervision of police personnel. 4th ed. Englewood Cliffs, NJ.:
Prentice-Hall, 1987.
Johnson, David Ralph. American law enforcement : a history. Saint Louis, Mo.:
Forum Press, 1981.
Kappeler, Victor E., Richard D. Sluder, and Geoffrey P. Alpert. Forces of deviance :
understanding the dark side of policing. 2nd ed. Prospect Heights, IL: Waveland
Press, 1998.
Kleinig, John. The ethics of policing Cambridge studies in philosophy and public
policy. Cambridge; New York: Cambridge University Press, 1996.
Maanen, Van. "The Boss: First-line supervision in an american police agency." In
Control in the Police Organization, ed. Maurice Punch, 275-317. Cambridge, MA;
London, England: The MIT Press, 1983.
Manning, Peter K. "The police: Mandate, strategies and appearances." In Policing:
A view from the Street, ed. Peter K. Manning and John Van Maanen, 7-31. Santa Monica,
CA: Goodyear Publishing Company, Inc., 1971.
Manning, Peter K., and John Van Maanen. Policing : a view from the street. Santa
Monica, Calif.: Goodyear Pub. Co., 1978.
McCormack, Robert J. "Police Perceptions and the Norming of Institutional
Corruption." Policing and Society 6 (1996): 239-246.
More, Harry W. Special topics in policing. Cincinnati, Ohio: Anderson Pub. Co.,
1992.
New York (City) Commission to Investigate Alleged Police Corruption. The Knapp
Commission report on police corruption: Braziller, 1973.
Police, International Association of Chiefs of. Managing for effective police
discipline: a manual of rules, procedures, supportive law, and effective management.
2d rev. ed. [Gaithersburg, Md.]: I.A.C.P., 1977.
Potts, Lee W. Responsible police administration: issues and approaches.
University, Ala.: University of Alabama Press, 1983.
Radelet, Louis A., David L. Carter. The police and the community. New York:
Macmillan College Pub. Co., 1994.
Reaves, Brian, Andrew L. Goldberg, and United States. Bureau of Justice Statistics. Law
enforcement management and administrative statistics, 1997: data for individual state and
local agencies with 100 or more officers. Washington, DC: U.S. Dept. of Justice
Office of Justice Programs Bureau of Justice Statistics, 1999.
Reiss, Albert J. The police and the public. New Haven: Yale University Press,
1971.
Rights, United States Commission on Civil. Who is guarding the guardians?
Washington D.C.: U.S. Government Printing Office, 1981.
Sherman, Lawrence W. Scandal and reform: controlling police corruption. Berkeley:
University of California Press, 1978.
Stoddard, Ellwyn R. "The informal "code" of police deviancy: A group
approach to blue-collar crime." In The police & society: Touchstone readings,
ed. Victor E. Kappeler, 181-202. Prospect Heights, IL: Waveland Press, 1968a.
Stoddard, E. R. "The informal 'code' of police deviancy: a group approach to
'blue-coat crime'." Journal of Criminal Law, Criminology and Police Science
59, no. 2 (1968b): 201-213.
Uchida, Craig. "The development of the American police." In Critical issues
in policing: contemporary readings, ed. R. G. Dunham and G. P. Alpert, 18-35.
Prospect Hights, IL: Waveland Press, 1997.
Van Maanen, John. "Kinsmen in repose: Occupational perspectives of patrolmen."
In Policing: A view from the street, ed. Peter K. Manning and John Van Maanen,
115-128. Santa Monica, CA: Goodyear Publishing Company, 1978.
Van Maanen, John. "Observations on the making of policemen." In "Order
under law": Readings in criminal justice, ed. R. G. Culbertson and R. A.
Weisheit, 87-107. Prospect Heights: IL: Waveland Press, 1997.
Willing, Richard, and Kevin Johnson. "More law enforcers becoming lawbreakers." USA
Today, July 29, 1999 1999, 4A.
Wilson, James Q. "Dilemmas of Police Administration." In Policing: The view
from the street, ed. Peter K. Manning and John Van Maanen, 57-70. Santa Monica, CA:
Goodyear Publishing Company, 1968.
Wilson, James Q., and George L. Kelling. "Broken Windows." In The police and
society: touchstone readings, ed. Victor E. Kappeler, 154-167. Prospect Heights, IL:
Waveland Press, Inc., 1982.
Wilson, O. W., and Roy Clinton McLaren. Police administration. 4th ed. New York:
McGraw-Hill, 1977.