Transparency Is Key to Accountability – D.C. Council Should Reject Reductions Buried In D.C. Crime Proposals

Fritz Mulhauser | October 30, 2023 | Last modified: December 12, 2023

UPDATE 12/12/23 – iThe mayor’s “ACT Now” crime bill was introduced in the D.C. Council as Bill B25-0555. Coalition board member and attorney Bob Becker testified on the “very negative consequences” from police transparency and accountability cutbacks included in the bill at an 11-hour marathon hearing November 29. (Written statement here; video here, with Coalition testimony beginning at timestamp 01:40:50.)

Many testified to community fears and impacts of crime incidents, and hopes that the bill’s specifics could be effective—though few, including the police chief Pamela Smith, pointed to strong evidence. Most of the bill specifics seemed to rest on hopes and hunches. The new chief repeated her view from the confirmation roundtable that officers’ “privacy and safety interests” should be acknowledged by revising enhanced officer public accountability previously welcomed unanimously by the Council.  A hotelier spoke to “encourage and support any initiative except inaction.” The Post’s Michael Brice-Saddler reported “mixed opinions” and that accountability was “hotly debated,” but the paper’s neutral headlines noted only the bill drew “a crowd” to “weigh in.”

D.C. mother Kenithia Alston urged full disclosure about officer-involved shootings, reminding the Council again in strong testimony (02:26:43) how she has tried for years (including a pending federal lawsuit) to learn full details of the D.C. police encounter with her son Marqueese who died in 2018 under police gunfire in Southeast Washington. Michael Tobin, director of the Office of Police Complaints, strongly criticized the transparency proposals. “It’s really shortsighted and imprudent to believe that reducing the authority of my office and eliminating the ability of the public to participate and understand and see the workings of its own police force will somehow reduce crime and make us safer,” Tobin said. “It’s just a wrong assumption.” Katerina Semyonova, Public Defender Service Special Counsel for Policy and Legislation, also recalled the reform legislation passed unanimously just a year ago and warned the rollbacks in the mayor’s bill, if passed by the Council, would be a “remarkable and cynical departure” from those views.

The fate of the bill’s many parts will be decided next year. With other crime proposals still to receive hearings, no committee markup is likely soon, while oversight and budget tasks in the early part of every new year often delay other work.  

Thankfully, much criminal justice policy is not subject to national referendum. Ideas must pass muster in (one hopes) responsive legislatures that make the laws for their jurisdiction. D.C. Council lawmakers face a busy season reviewing a storm of new ideas, while weighing legitimacy of existing legislation and considering realities of continuing violence. The work begins with several committees’ joint violence prevention roundtable on Monday (30) and dozens of proposals await consideration in further sessions before FY25 budget work takes over on center stage early in 2024 in the Council Committee on the Judiciary and Public Safety, chaired by Brooke Pinto (D-Ward 2).

The D.C. Open Government Coalition urges the Council to heed public expectations for transparent information on police, crime-related programs, courts and related criminal justice matters, a value nearly forgotten in the rush to action.

“Reducing transparency is rarely a good idea. Transparency helps foster public trust especially concerning police, particularly in cases where officers are accused of wrongdoing. D.C. taxpayers pay officers’ salaries, expect good conduct according to the Constitution and community standards, and officers engaged in misconduct should not be allowed to hide behind a shield of secrecy.”

D.C. Open Government Coalition President, Kirsten B. Mitchell

The Coalition President Kirsten B. Mitchell noted, “Reducing transparency is rarely a good idea,” and the Coalition will continue its advocacy as the discussion goes forward because “transparency helps foster public trust especially concerning police, particularly in cases where officers are accused of wrongdoing. D.C. taxpayers pay officers’ salaries, expect good conduct according to the Constitution and community standards, and officers engaged in misconduct should not be allowed to hide behind a shield of secrecy.” 

Review of policing here since 2020 has found much room for improvement—as Post writers summarized the effort last month, “a liberal city that has sought to come to terms with the racially disproportionate impacts of its criminal justice system.” The District completed years of work to rewrite an antiquated criminal code (though Congress used its authority over D.C. to veto the entire product). It listened to a reform commission, assembled its many proposals into a wide-ranging police reform bill, and passed further changes this spring as short-term legislation under pressure from the mayor to address public concerns.

Those prior efforts are now joined by another sheaf of ideas, including the mayor’s latest bill, announced last Monday (23) and available in draft but not yet submitted to the Council, with twelve titles, 5,000 words, and a label (“ACT Now Act”) suggesting her continued sense of urgency. Council Member Pinto has her own set of proposals in more than a half-dozen bills.

The policy discussion will be better to the degree proposals are backed with information on effectiveness. This is not easy; the Council’s Monday hearing will hear testimony from City Administrator Kevin Donahue that there are few results to report from a mayoral order in May to bring coherence and measurement of effectiveness to the many disparate efforts on violence prevention, surely the most crucial public concern. Work is promised to continue through the FY25 budget process that continues until next June.

The Washington Post, in an editorial this weekend, endorses ”many good ideas” and “productive contributions to the national recalibration” in the mayoral proposals this year. But the editors add a warning, missing elsewhere in the media, of the “risk of overcorrection” and especially “concessions to the D.C. police union that would roll back transparency for officer misconduct without making the community safer.”

Proposals in the mayor’s latest bill that weaken transparency include:

• less public access to police discipline files (only future incidents, not past; only sustained complaints; and no names)
• reduced access by the Office of Police Complaints to MPD files for complaint review
• more opaque discipline by allowing public notices of hearings that don’t name the officer charged
• fewer incidents where body-worn camera video must be released and reinstating the redaction of police faces in released video.

The mayor justifies reduced information on the unproved theorem that transparency lowers morale when mistakes are acknowledged and punished, as it may cause embarrassment, harassment, or even violent reaction. The Post quotes the mayor that the District should “not lose our officers to the surrounding jurisdictions because our policy environment makes them scared to do their jobs.” 

Policy driven by what the current workforce wants? This appears to be confused thinking.[1]

First, managing the force better right now could yield dividends. Successful recruitment and long-term retention depend on solid personnel work not unique to law enforcement—that is, the many mundane decisions such as hiring process details, training to remove ambiguity on the required work methods, assignments that put people where skills are used, equitable promotion policy, or health insurance after retirement. So, Council oversight needs to probe whether D.C. manages its force to modern standards.

Evidence of this point is strong in Jenny Gathright’s account in WAMU/DCist this week on police turnover (thanks, DC Spotlight). She questions the “prevailing public narrative” by offering details of how, among officers she interviewed, even acknowledging “police reform legislation and increased scrutiny on law enforcement pushed them away from the department, many ultimately left because they said they were profoundly overworked and felt disrespected by MPD managers.” Surely these would be signals of ineffective personnel management anywhere.

[What a dozen officers told me] “departs from the prevailing public narrative about attrition at MPD in recent years.”

Jenny Gathright, “‘Like A Tiny Cog In A Broken Machine’: Overtime, Mismanagement Plummet Morale And Push Cops Out Of MPD.” WAMU/DCist, October 26, 2023.

A forthcoming police staffing study by the D.C. Auditor will be an essential guide. A research report for police chiefs nationwide accumulated a book of detailed ideas of what works as police departments nationwide cope with hiring and retention pressures.

Legal claims of employee privacy face headwinds. The federal court in New York examining New York City union efforts to reverse that state’s legislative action opening police discipline records held there is just not “a generalized privacy right inherent in the disciplinary records of public employees.” The U.S. Court of Appeals for the Second Circuit agreed there had been no grounds to accept a litany of union assertions of harm from disclosure or of unlawful disparate treatment of police compared to all other city employees.

Prioritizing less transparency and accountability as needed for workforce morale is an illogical place to start when there is no legal weakness (to the typical disclosures) and much room for improvement in essential personnel management affecting the existing force.

The D.C. Council thus faces two essential steps towards rebuilding the force for a new generation.

• It is essential legislative work for the Council, as it has done in recent years, to work from community expectations to set the definition of good D.C. policing and the consequences for misconduct. Officers can then decide whether MPD is the department for them.
• Second, D.C. may need to change the force instead of accepting the race to the bottom of adopting preferences of current members (such as more uses of force and less publicity for mistakes).

A new court challenge here shows the secrecy preferred by the current force: a lawsuit recently filed by the police union seeks millions of dollars in punitive damages against the D.C. Auditor and staff for publishing an October 2022 report on ineffective police discipline when terminations were overturned and back pay awarded. The suit claims the report included ”confidential, personal information” protected by law, regulation, and policy, and that should have been shielded to prevent damage to officers’ lives at work and home. 

The competitive labor market just now means employees enjoy unprecedented options; many may choose to go where they can police as they prefer. Former MPD Chief Peter Newsham is now chief in Prince William County, Virginia, which had 20 homicides in 2022; many would probably welcome that quieter life.

Some Council members are ready to maintain a priority for officers’ accountability to high standards of conduct – standards raised in many places following the murder of George Floyd in 2020.  Ward 5 Council Member Zachary Parker wrote interim MPD chief Pamela Smith this week (23) before the committee voted on her nomination to be permanent chief.

Parker explained his concern about accounts that the chief did not act with genuine zeal for accountability in the investigation of the U.S. Park Police officers’ shooting in Virginia of motorist Bijan Ghaisar. Parker also noted repeated findings of the D.C. Office of Police Complaints on lax discipline for sustained complaints, and asked for written assurances of Smith’s “commitment to accountability” … “including holding MPD employees to a high standard of conduct—including by imposing meaningful discipline when it is justified” as the prior chief did not do, according to data cited by Parker from the Office of Police Complaints.

The Coalition welcomes more attention to these dramatic data from the OPC on how accountability fails to reflect even existing rules of conduct; the Coalition cited the same in its testimony at the September 27 nomination roundtable.

Community views on policy specifics may differ today from those embraced at the start of the reform discussion in 2020. But reduced transparency is rarely a wise choice: it limits public information needed for accountability, has seldom been shown harmful, and is not a necessary tradeoff to maintain police morale.  

Council Members Pinto, Parker, and colleagues in this new round face major challenges:

• negotiating agreement on the policing the community wants,
• funding the pay and perks needed to attract the police force needed to police according to those values, and
• developing a way the Council (that passed many prior reform measures unanimously) can work with the new chief towards these goals.

A big agenda for the months ahead.  

If you have ideas for maintaining police transparency under challenge and developing a new force that can work under 21st-century norms in a liberal municipality, contact us at info@dcogc.org.

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[1] The ideas that follow benefit from the work of Matthew Yglesias to rethink the problems of urban policing. See his Substack “Slow Boring,” for example, here and here, and his proposal for a new “Police for America” program to refresh the workforce and the police policy debate as Teach for America has done for over 30 years in schools.