Guest Commentary: Lawmakers fall short on promises of police reform
Mike Brickner is the executive director of the American Civil Liberties Union Delaware.
As the 2023 legislative session came to a close, lawmakers passed House bills 205 and 206, which were touted as significant changes to policing in Delaware. Unfortunately, this legislation falls far short of the promises made in the wake of the George Floyd murder and protests of 2020, both in the drafting process and the bills’ content.
When Delaware legislators pledged to address policing issues in 2020, the controversial Law-Enforcement Officers’ Bill of Rights was at the top of the list. Delaware’s LEOBOR is one of the most extreme in the nation, keeping all police disciplinary records secret from the public and preventing local citizen review boards from having any ability to hold police departments accountable.
Over the course of three years, advocates patiently worked with lawmakers to achieve meaningful reform. Legislative leaders formed a task force to examine the various issues, which advocates participated in wholeheartedly. The Community Policing and Engagement Subcommittee included as part of its final recommendations to significantly amend the Law-Enforcement Officers’ Bill of Rights to address these transparency and accountability issues. In addition, the Transparency and Accountability Subcommittee recommended that the public should have access to information about substantiated and unsubstantiated complaints from citizens and the outcome of investigations.
Then, in 2021, advocates worked with lawmakers to draft Senate Bill 149, which would have significantly delivered police reform in its original version. After pushback from law enforcement, advocates worked with lawmakers and law enforcement on potential compromises but eventually had to withdraw support after the bill was watered down so much that it would no longer be effective.
The legislation passed in 2023 fails to address the core concerns with police accountability and transparency.
HB 206 rebrands the Council on Police Training, which has powers to review incidents where an officer may lose his or her certification, to the Police Officer Standards and Training Commission. HB 206 mandates that the commission work with local governments to create “accountability boards” — but they will be equipped with few tools to provide actual accountability. These boards are charged with advising police departments on high-level policy and training issues. However, the Bill of Rights will still prevent the boards from having the authority to weigh in on individual incidents of police abuse, review complaints by residents, have subpoena power and make decisions on police discipline.
HB 205 is intended to address the secrecy portions of LEOBOR but, again, does little to change the law. Rather than allow Delawareans direct access to public documents related to police disciplinary issues, it instead creates a funnel of information between police departments, the Criminal Justice Council (CJC) and the public. Law enforcement would be required to provide the council with detailed narratives of police disciplinary issues but not the underlying documentation into the incident and the investigation. CJC is then charged with making those narratives available to the public.
These changes still do not change the core Law-Enforcement Officers’ Bill of Rights principle that the police control the decision about whether or not to release information about police misconduct to the public. After HB 205, police misconduct in Delaware is only available if the police choose to investigate, decide it amounts to misconduct, write a descriptive narrative and categorize the substantiated misconduct as one of the limited types that must be shared.
It underscores the overall problem with how lawmakers and law enforcement are approaching this issue: They seem to not believe that the public has any right to disciplinary records, despite the fact that taxpayers support police departments and entrust them to enforce the law. Lawmakers’ lack of trust in the public to have access to the inner workings of police departments only exacerbates the lack of trust that many members of the public have toward law enforcement.
When the community asked for transparency, we meant true access to records and to be able to fully see how police departments handle disciplinary issues. Instead, lawmakers have suggested a distilled, bureaucratic process that will not alleviate the culture of secrecy and distrust that continues to plague police-community relationships. The minor changes with the Police Officer Standards and Training Commission and creation of local accountability boards without true power do not come close to addressing the calls for community-led oversight.
Legislators passed HB 205 and 206 touting that it was a first step, and now, they need to make good on that pledge and address the much larger lift of getting to the core issue — the lack of accountability law enforcement has toward the public they serve. Looking ahead, legislators must be held accountable for making good on the rhetoric around “first steps” they used this past session and pass legislation providing true transparency and accountability in 2024.
