Ensuring Justice, Equity, and Accountability Through the New Massachusetts Peace Officer Standards and Training (POST) Commission
By Randall E. Ravitz
Events in 2020 focused public attention squarely on the practices of law enforcement and issues of racial justice. Responding to calls for action, the Massachusetts Legislature passed, and Governor Charles D. Baker signed, An Act Relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth. The legislation changed the rules of policing and reformed the criminal justice system in numerous ways. At its heart was the creation of a permanent state agency to oversee law enforcement in Massachusetts. Designated the Massachusetts Peace Officer Standards and Training (POST) Commission, the agency has been given broad authority and weighty responsibilities. The Commission has made substantial progress in fulfilling its statutory charge, but more work remains before the Legislature’s vision for law enforcement in the Bay State can be realized.
Addressing Important Issues Through Sweeping Legislation
In enacting the 2020 legislation, lawmakers emphasized several important themes. Legislators stated that the overwhelming majority of officers serve with good intentions and perform their jobs well, and expressed an appreciation for the sacrifices officers make in the line of duty. They stressed that law enforcement agencies can benefit from measures that ensure officers have clean professional backgrounds, are thoroughly trained, and meet high standards. Such agencies can then be more effective in hiring qualified officers, securing the public’s confidence, and keeping communities safe.
At the same time, lawmakers emphasized the need to address misconduct and racial justice in policing. The Act’s sponsors spoke of a small percentage of officers who have engaged in impropriety, to the point of demeaning, injuring, or even killing members of the public. Such officers, they explained, harm their colleagues and civilians, destroy trust between law enforcement and communities, and render the public less safe. They lamented that communities of color have suffered disproportionately, as evidenced most starkly by the killing of George Floyd and similar recent events. Thus, they contended, there must be mechanisms to address these issues such as suspending officers, ordering them to be retrained, and, when warranted, ending their law enforcement careers, provided they are judged through procedures that are fair and protective of their rights.
Legislators also insisted that special attention be given to particular forms of conduct by officers, including the use of firearms, rubber pellets, stun guns, tear gas, pepper spray, canines, chokeholds, other forms of force, and actions motivated by bias or involving dishonesty. Lawmakers contended that such conduct should be monitored, restricted, prohibited, or subject to special consequences. They added that officers should be required to intervene when witnessing any misuse of force by their colleagues.
A related priority of lawmakers was breaking the “school to prison pipeline” —preventing young people from becoming involved in the criminal justice system. Achieving this goal, in their view, depended in part on controlling the involvement of the police in schools and the exchange of information between the two.
The Act reflected a balancing of these themes. It regulated the conduct of law enforcement in new ways, including by restricting the use of force and potentially dangerous techniques by officers; requiring officers to intervene when force is improperly used by others; restricting the use of facial-recognition technology; limiting the exchange of information between officers and schools regarding students; banning racial profiling; prohibiting officers from having sexual relations with those in custody; and restricting the use of no-knock warrants. The Act further provided direction regarding the oversight of law enforcement personnel by establishing qualifications for cadets, officers, and the State Police Colonel; requiring new forms of training; prescribing procedures for promotion and discipline; revising the school resource officer program; and requiring added forms of data collection and reporting. The Act also made it easier for members of the public to access information about the police, secure civil-rights judgments against officers, and have criminal records expunged.[1]
Overseeing Law Enforcement Through a New Agency
A major component of the 2020 legislation was the establishment of the POST Commission — an independent agency charged with overseeing law enforcement departments and officers throughout the Commonwealth.
The new agency, which began operating in mid-2021, is guided by nine Commissioners, each of whom is appointed by the Governor, the Attorney General, or those two officials together. The body of nine must be diverse in terms of gender, race, hometown, party affiliation, law enforcement experience, and nominating organization. There must be three law enforcement officials, including a police chief and a labor union representative. The remaining six members must be civilians and include a retired Superior Court judge, a lawyer, and a social worker. Each civilian member must have experience or expertise in a relevant discipline.[2]
The agency is managed by an Executive Director. The certification functions described below are administered by a Division of Police Certification, and the disciplinary work described herein is carried out by a Division of Police Standards. The statute precludes a former law enforcement officer or police department employee from serving as Executive Director or a member of the Standards unit.[3]
The Act additionally calls for the Commission to collaborate with the Municipal Police Training Committee (MPTC) in performing various certification, regulatory, and information-maintenance functions described below. The MPTC is an existing agency within the Executive Office of Public Safety and Security (EOPSS). It is charged with setting policies and standards with respect to officer training, the screening of law enforcement academy applicants, background investigations of prospective officers, and the maintenance of training records.[4]
The Commission has been given a wide range of powers and duties, including certifying officers and their departments; regulating law enforcement; maintaining, analyzing, and disseminating information regarding law enforcement; and imposing discipline.
Certifying Officers and Their Departments
The Commission and the MPTC are required to establish standards for officer certification jointly. The standards must at least include twelve statutorily enumerated requirements related to age, education, training, moral character, fitness for employment in law enforcement, and adherence to legal and professional norms. An individual needs to be certified in order to be appointed or employed as a law enforcement officer.[5]
The Commission supplemented the statutory provisions with regulations and protocols concerning the certification process. Among other things, they prescribe procedures for assessing individuals’ character and fitness for employment in law enforcement, make accommodations where external factors prevent an individual from satisfying certain requirements, and afford individuals the ability to respond and seek further review upon receiving adverse certification decisions.[6]
The Act granted most serving officers an automatic certification as of July 1, 2021. It then assigned certification periods of one, two, or three years to those officers, based on their last names. As a result, close to 9,000 officers with last names beginning with A through H were required to apply for recertification by July 1, 2022, in order to continue serving. To successfully evaluate those applications, the Commission implemented its new regulations and protocols, enlisted the aid of supervisors in police departments, and relied upon automation and officer cooperation.[7]
The Commission is further charged with issuing specialized certifications for school resource officers. Massachusetts law delegates responsibility for other aspects of the school resource officer program to the MPTC, EOPSS, the Department of Elementary and Secondary Education (DESE), and local school districts and police departments.[8]
Additionally, the Commission is required to develop standards for certifying law enforcement agencies, in consultation with the MPTC. Such standards must, at a minimum, provide for the establishment and implementation of departmental policies in eight specified areas. Those areas relate to how officers interact with suspects and other members of the public, conduct investigations, and are subject to discipline.[9]
Regulating Law Enforcement
The new law enables the Commission to regulate law enforcement officers and agencies in a variety of ways. The Commission may, for example, take certain steps to ensure that officers satisfy training requirements, refrain from using excessive force, and otherwise adhere to sound protocols. Accordingly, and consistent with the governing statute, the Commission and the MPTC have jointly promulgated regulations that ban certain restraint procedures, restrict the use of deadly and non-deadly force, and limit certain crowd-control practices. The regulations additionally require officers to intervene when others use excessive force, provide for more extensive reporting regarding uses of force, and require agencies to protect their personnel against retaliation for reporting abuse. The Commission has also issued a “Guidance on Developmentally Appropriate De-escalation and Disengagement Tactics, Techniques and Procedures and Other Alternatives to the Use of Force for Minor Children.” The advisory recommends ways to de-escalate situations involving juveniles and thus avoid making arrests, identifies youth-related subjects in which officers should be trained, and offers suggestions for addressing trauma and for enhancing relationships between law enforcement and communities.[10]
Maintaining, Analyzing, and Disseminating Information Regarding Law Enforcement
The Commission is responsible for collecting, maintaining, and publishing certain information regarding officers. Publication is to be made through one or more public-facing databases and by the issuance of reports. The agency is also expected to analyze information that it collects in order to identify patterns of misconduct, situations warranting referral to prosecuting offices, and policy recommendations that can be offered to other governmental bodies.[11]
Imposing Discipline Based on Misconduct
In addition to the powers and duties discussed above, the Commission has authority to investigate complaints against officers, suspend or revoke their certifications based on misconduct, and order them to be retrained. The Commission may take such actions where officers engage in conduct involving excessive force, dishonesty, bias, criminality, and other types of wrongdoing. The statute contemplates that Commission disciplinary action will ordinarily follow an internal investigation by the officer’s department. The Commission has supplemented the statutory provisions with regulations that aim to ensure that investigations, adjudications, and impositions of discipline in response to allegations of officer misconduct are thorough, orderly, and fair.[12]
When an officer’s certification is revoked — that is, when the officer is “decertified” — the consequences are serious. By statute, the Commission must publish the revocation on its website, report it to the National Decertification Index, and work with other jurisdictions to ensure that the person does not rejoin law enforcement. The individual is also precluded from challenging any resulting employment consequences with the Civil Service Commission, and may have enhanced exposure to civil liability. Additionally, the officer is permanently barred from applying for training or recertification, and from working in any capacity for a Massachusetts law enforcement agency, a sheriff’s office, or EOPSS.[13]
Conclusion
The Commission has made great progress in building a new agency, promulgating regulations, certifying officers, processing complaints, and developing automated systems. Much work lies ahead in order for the Commission to achieve the Legislature’s ultimate goal of ensuring that law enforcement in the Commonwealth is characterized by justice, equity, and accountability.
Randall E. Ravitz is General Counsel for the POST Commission. He previously served as an Assistant Attorney General and Chief of the Appeals Division of the Criminal Bureau in the Massachusetts Attorney General’s Office. He authors this article in his personal capacity, and it does not necessarily represent the views of the Commission.
[1] The themes discussed above were reflected in floor statements by legislators, video-recordings of which are available on the Legislature’s website, and a message from the Governor to the Legislature. E.g., 2020 Senate Doc. 2963, House Floor Debates, Dec. 1, 2020 (statements of Reps. Cronin, Gonzalez, Miranda, and Tyler), Dec. 22, 2020 (statements of Reps. Cronin and Gonzalez); 2020 Senate Doc. 2963, Senate Floor Debates, Dec. 1, 2020 (statements of Sens. Brownsberger, Chang-Diaz, and Creem), Dec. 21, 2020 (statements of Sen. Chang-Diaz); 2020 Senate Doc. 2975, Dec. 10, 2020 (message of Gov. Baker to Legislature).
[2] G.L. c. 6E, § 2(a)-(c) (establishing Commission and prescribing its composition and structure); Mass. POST Comm’n, Meet the POST Commissioners (biographies of current Commissioners).
[3] G.L. c. 6E, §§ 2(g)-(i), 3(a), 4, 8 (setting forth powers and duties of Commission, Executive Director, and Divisions of Police Certification and Police Standards; and barring former law enforcement personnel from serving in certain roles).
[4] G.L. c. 6, § 116 (establishing MPTC’s powers and duties, requiring MPTC and Commission jointly to develop minimum officer certification standards and regulations on the use of force, and mandating provision of training records to Commission); G.L. c. 6E, §§ 3(a), 4(f)(1), 4(h), 5(b), 14(a), § 15(d) (providing for collaboration between MPTC and Commission in developing officer and agency certification standards, use-of-force regulations, and maintenance of information).
[5] G.L. c. 6, § 116 (providing for MPTC and Commission jointly to establish minimum officer certification standards); G.L. c. 6E, §§ 3(a), 4 (providing for Commission to develop standards with MPTC and certify officers, and requiring certification for individual to be employed as officer); G.L. c. 22C, §§ 63, 64, 68 (confirming certification requirement for certain officers).
[6] 555 CMR 7.00 (recertification regulations).
[7] St. 2020, c. 253, § 102 (providing for automatic certification and staggered expiration deadlines); 555 CMR 7.00 (recertification regulations).
[8] G.L. c. 6E, § 3(a)-(b) (granting Commission certification powers; authorizing Commission to provide specialized certification for school resource officers; and requiring such certification for service); G.L. c. 6, § 116H (requiring MPTC to develop training program for school resource officers covering eight specified topics, in consultation with experts in certain areas); G.L. c. 71, § 37P (governing selection, functioning, supervision and review of school resource officers; certain aspects of their training; memoranda of understanding and operating procedures governing their service; reporting of related information; and certain responsibilities of EOPSS and DESE).
[9] G.L. c. 6E, §§ 3(a), 5 (granting Commission certification powers, and providing for Commission to certify law enforcement agencies based on enumerated and any additional standards).
[10] G.L. c. 6, § 116 (requiring use-of-force regulations); G.L. c. 6E, §§ 1, 3(a), 4, 5, 8-9, 10, 14, 15 (granting Commission various investigatory, auditing, certification, disciplinary, regulatory, and enforcement powers; requiring officers and law enforcement agencies to make certain reports and comply with Commission rules or regulations); St. 2020, c. 253, § 119 (requiring guidance regarding use of force upon minors); 550 CMR 6.00 (MPTC version of use-of-force regulations); 555 CMR 6.00 (Commission version of use-of-force regulations).
[11] G.L. c. 6, § 116 (requiring MPTC to provide records of completed training to Commission); G.L. c. 6E, §§ 3(a), 4(h), 4(j), 8(c)(2), 8(e)-(f), 10(b), 10(d), 10(g), 13(a), 16 (governing Commission powers and responsibilities regarding investigation, auditing, recordkeeping, referring matters to prosecutors, maintaining databases, analyzing data, reporting and publishing information, promulgating regulations, and recommending policies); St. 2020, c. 253, § 99 (requiring law enforcement agencies to provide certain disciplinary information to Commission).
[12] G.L. c. 6E, §§ 1, 3(a), 8, 9, 10 (granting Commission powers regarding investigation, discipline, and enforcement; prescribing procedures for departmental and Commission investigations of alleged misconduct, suspension and revocation of certification, orders for retraining, recordkeeping, and publication of information); 555 CMR 1.00 (regulations on investigations and adjudications).
[13] G.L. c. 6E, §§ 1, 4, 8, 10, 11 (equating revocation and decertification; prescribing grounds and procedures for decertification; precluding academy admission, appointment, employment, or certification for decertified individual; requiring notification and recordkeeping regarding decertification); G.L. c. 12, § 11H(b) (providing for enhanced civil liability for decertified officers); G.L. c. 31, §§ 42, 43 (precluding Civil Service Commission review of decertification decisions); G.L. c. 41, § 96A (precluding appointment of decertified individual as municipal officer).
