The Importance of Establishing Tone — and a Transformative Way to Approach Use of Force Statewide

The following is part 1 of 2 in our IACP Leadership Series conversation between Benchmark CEO Ron Huberman and Thomas Eicher, Executive Director of the Office of Public Integrity and Accountability, New Jersey Office of the Attorney General. In this entry, Mr. Eicher shares his belief in the importance of police chiefs setting the appropriate tone, expectations and sense of professionalism with the officers in their department — including the novel concept of assigning a county prosecutor to work with every agency.

RH: Tom, we’ve been talking to other leaders in the field about a variety of topics related to police reform. Let me start by asking a really broad question: Do you feel, at this moment in police reform in American history, that this is different in terms of the historical reforms that have occurred in policing — is this a pivotal point in time, or is it just another chapter?

TE: I do think it’s pivotal, and I think it’s different because it’s more broad-based. The prior reforms that I’ve been involved with and seen have been in response to specific incidents, and they’ve been top-down. But this one is really from the bottom up. This is really broad-based, involving large segments of the country: young, old, black and white are all engaged — and all want to see a difference. In my discussions with police officers and chiefs, I think they get it. However, police can be defensive – and considering some of the things that are being said – I think police take issue with the criticism . . . and rightly so.

I believe everyone I’ve talked to understands that – right or wrong – police have to respond to the public sentiment, because without public support they’re not going to be able to do their jobs. I think it is a challenging time because I feel some of the rhetoric is really out there. But I think police have to understand that this is their opportunity to be part of that process because change is going to happen. One of the concerns that I have is that as well-meaning as it is, people from the outside who don’t have an in-depth understanding of law enforcement, or background in the field, can try to come up with simple solutions — but the issues are more complicated than that.

RH: I agree. And I certainly worry about some of the past reforms because at times, from my perspective, they have seemed to dehumanize the police. Meaning they have not taken into full account all the day-to-day “stuff” that enable police officers to engage in thoughtful ways. Tom, let’s say that you were to wake up tomorrow, you’re a police chief — and you were giving yourself advice from someone who’s accountable for public integrity in the state of New Jersey: what would be the top thing you would advise a police chief must get right?

TE: I think it’s really not one thing because everything interacts. One thing I would say is, the chief has to set the tone for the department. It’s not a policy, or a practice even, it’s really just that the tone of the department has to be set by the chief, along with the expectations. What I would also say is that police officers need to understand themselves as professionals. They’re there to serve the public — not get down in the fray with the people that are breaking a law, but rise above it.

Obviously, police have to use force at times, they have to use force to do their jobs, but chiefs should be expecting more of the officers under their command. How do you do that? I think you set the tone with it, you be clear about what your expectations are . . . you develop written policies that set forth those expectations, you provide the training to implement the policies, and then you hold people accountable. Not that you’re going to create a sacrificial lamb, but if you intercede early – before things go really off the rails – then you can avoid those really bad incidents.

I think setting the right tone, letting your officers know you appreciate them and you have their back . . . but you’re going to demand and expect a level of professional engagement. It’s little things; like in some of my work, I’ve noticed the officers who are quick to swear or confront a potentially dangerous person are also those who are slipping over the line at times. I think the right tone and approach is part of the professionalism. I believe it goes across the board that the message to the officers has to be — you don’t stoop down to the level of some of the persons who may have committed a crime, but you rise above it and you expect more of yourself. The appropriate tone from the top is really critical.

RH: I’m in total agreement when it comes to early intervention and getting in front of inappropriate behavior. Tom, let’s talk about your role a little and what you see as the role of the state. Certainly, from my perspective as an observer of police policy and reform, the state of New Jersey is in front – almost more than any other state that we’ve seen – as part of the attorney general’s excellence in policing initiative. Can you share the basic framework of that initiative, as well as the logic behind that framework? How did your team come up with it? I think it’s such a compelling story for the country in terms of what you’re doing in New Jersey.

TE: Sure. Not to make it too personal, but I was a federal prosecutor for over 30 years. One of the things I did as a federal prosecutor was investigate and prosecute civil rights violations, including those propagated by police. When the Attorney General asked me to come work with him, I said I would do it as long as I got to be involved in police reform. Because what I realized was trying to change the relationship between the police and the community through occasionally prosecuting a really bad apple, it’s not going to really create the kind of reform that I thought needed to happen.

I agreed to come and set up this unit and run it for the Attorney General — I didn’t have to convince him. He was completely on board and said, “Let’s look at the big picture and see what we need to do.” This was before George Floyd, since I got here in 2018 and worked through the end 2019, we put together a series of reforms. We were convinced – and I am as well today – that it’s not one thing. There’s no silver bullet. It’s a series of things.

What does that include? It includes a functioning Internal Affairs and IA disciplinary process. We issued some new guidance and got the county prosecutors involved. They’re typically called district attorneys in many jurisdictions — more involved in reviewing police departments and what the police departments are doing. It requires more collecting of data about various outcomes, so that the public and county prosecutors in our office can look at data collected and say, “Why is it that nobody’s ever held accountable for a civilian complaint? Why are none of your excessive force complaints ever found to be justified?”

That piece of it – improving the Internal Affairs process – is absolutely critical because you don’t want to wait until something really, really bad happens that requires you to look at a criminal prosecution. Therefore, we also looked at that as well. Every police shooting in New Jersey is investigated — and we have the luxury, unlike most states, that New Jersey’s Attorney General is the chief law enforcement officer for the state and can issue directives and policies that apply to every law enforcement officer in the state. That’s a very robust power.

He’s also not elected . . .so that also gives him the freedom, as long as he has the support of the Governor, to institute policies without regard to the election blocks. We looked at that. It’s one of the things we did across the board: we investigate every fatal shooting and review every non-fatal police shooting in the state of New Jersey. Our office does that. It gives us an across-the-board look at what’s happening — it uncovers the circumstances under which things go off the rails and things go bad.

RH: What would you say are the pros and the cons of charging the county prosecutor with reviewing things such as a pattern of IA in a local jurisdiction? It’s certainly not a common model . . . where it’s outside of a specific incident. How are you finding that it’s working? Would you recommend other states consider it?

TE: Because of the COVID-19 crisis, although we issued the policy in December of 2019, it didn’t go into effect until August of this year. Then we had to train up all 21 county prosecutors in New Jersey, so it’s early in the implementation phase. So I can’t really tell you how well it’s working at this point — we have 550 individual police departments in New Jersey. For us, to try to monitor and audit on a large scale would be impossible. It’s even hard for the county prosecutors, some of whom have over 70 municipalities in their jurisdiction. We’ve asked them to at least take a look at it. The idea is if you know somebody’s looking over your shoulder, you’re going to be more likely to take it seriously for fear that you’re going to be called on the carpet.

One of the things we’re looking at doing in our new use of force policy is requiring that every chief sign off on an annual report to the prosecutor’s office about the use of force by their department and requiring them to analyze and sign off on every use of force at some level. By requiring that they focus on it, it hopefully will encourage that the chiefs realize this is important. There are a lot of important things, but this is very important. It’s got to be looked at.

I believe the IA process is challenging, in part, for some reasons that folks have noted recently in the news: that even if the chief imposes discipline, it’s then subject to arbitration as well as appeal to the courts. This process can undermine the certainty of the discipline. We need to find a balance that allows the chief to exercise reasonable discipline, subject to due process, but does so in a way that’s swifter and more predictable. Right now, I think that’s one of the gaps we have in our system.

RH: If I understand it right, you guys [New Jersey] are one of the only five states in the country who don’t have a decertification process today. Is that correct?

TE: That’s correct.

RH: Not saying it’s super effective, but that it is not a tool if someone hops around or if there are other problems. It’s not available as a tool today to try to get in front of some issues.

TE: That’s exactly right. We have a Police Training Commission that does the initial training of officers. One of the things that was part of the excellence in policing was to have them make a decision about whether they recommend a licensing. And earlier this summer, they did come out unanimously in favor of a licensing or certification regime that would involve decertification as well.

What that’s going to do is put a floor on the process, and allow a statewide look at setting minimum standards — not only to become a police officer. In the past, there has not been even psychological testing that was required before somebody could go to the police academy. With this change, minimum standards would be there, which is important.

It would also likely require continuing education and training, keeping up with use of force policies, along with other policies that the Attorney General issues.

It will create a mechanism to weed out the really bad apples. One of the things we did in the Internal Affairs reforms we put in place last December was to require every department that hires a police officer from another department to check the Internal Affairs records for that officer. Now, they’re not required to act on them. They could look at the records and say, “Gee, this person has five sustained uses of force, but I’m going to hire him anyway.” But that’s where the licensing comes in as a backstop if you see a pattern. Once it’s set up, it will enable a really robust licensing or certification regime.

RH: It sounds like we will all be watching how effective it is by having the county prosecutor play that new role, right? It could be a model for the nation. I’m sure we’ll learn the pros and cons to each piece of this reform, but sounds like you’re moving the ball forward.

Let me get a chance, Tom, to share some of those other reforms that you guys are doing at the state level?

TE: Sure. One of the things we’re doing is requiring that every use of force incident is reported in a statewide portal. Every time a police officer uses force in New Jersey, they’re required to fill out a detailed account through an online system. The report is then shared with the attorney general’s office, the chief of the officer’s department, and with the county prosecutor. We will have a system that’s tracking detailed information about all uses of force across the state.

We will learn when are they occurring…what are the circumstances under which they’re occurring? What’s the type of force used? Which force ends up resulting in injuries? What’s the resistance level that the force is being used against? These reports will provide a detailed picture that’s going to allow the chiefs to look at use of force among officers. Importantly, in larger departments, chiefs can look at trends that may not be apparent just from anecdotal review. It also allows the county prosecutors to look at those departments and say, “Why is it that these two similarly situated departments have wildly different amounts of force being used within their jurisdiction?”

All this tracking data will allow the county prosecutor to sit down with each chief and talk about what’s happening in their department: What are the reasons for use of force actions . . . there may be good reasons or there may not be. I think this process is really exciting — it’s going to lead to not only more effective reform, but by the same principle, if you know what you’re doing is going to be reported and reviewed, you’re going to be more careful about it. You’re going to be more thoughtful about actions taken.

Police officers, I hope, will always use force when it’s required and necessary for their protection and for the public’s protection. But I think they’ll be more judicious and conscious about it if they know they have to fill out a detailed report, and someone’s going to be looking at that report to see if it met the policies and procedures set forth by the department.

RH: Yes, that would be very consistent with the work that we’ve seen in the research across the country. Where we can’t speak to whether measurement changes behavior, we can certainly speak to the fact that what you described earlier rings true with national research — which is this confluence of what you brought up about . . . I’m going to call it ‘broken windows theory’. If it’s the officers who are swearing who may also be more likely to be involved in using force earlier than called for, our research shows that if you are struggling in one area, you’re going to be struggling in multiple areas — it’s usually not isolated.

Being able to look at use of force patterns could be part of understanding how all factors work together. It makes tons of sense and congratulations. You guys [New Jersey] are, from our research of all 50 states, the first state to not only require but actually have it executed statewide. Benchmark is lucky to be part of the story and we’re happy to be able to serve where we can.

Don’t miss Part 2 in our post Our Work in Progress and Reflections on Policing in the Past, where Mr. Eicher discusses new polices his state is implementing to improve transparency and accountability, moving toward a more effective, evidence-based early intervention system — as well as sharing his thoughts on various policing reforms over time and the need to look at the criminal justice system as a whole.

This interview from October 2020 has been edited for clarity.