Prosecution reform

In My Humble Opinion
1

I’ve been thinking about this for a while, and I am starting to believe that many of the policing problems in the US aren’t only police problems but they are enabled by district attorney problems.

If a cop does something seriously wrong, and there are no penalties, then it’s like he didn’t do anything wrong. The deciding factor is the prosecutor.
Today with the technology available, all police should be wearing cameras and all police and first responder vehicles should have dash cams at the least. The rules around the camera usage should have some real teeth with real penalties.

I believe that prosecutors don’t or won’t prosecute police in many cases, partially because there is an incestuous relationship between the parties, but also because many prosecutors are concerned with their conviction stats. They want to remain in the high 90% range if at all possible. Prosecuting the police is too risky. The cops have almost always received a pass by juries hopefully that is in the process of changing.

My point is, cops do what is easiest and what they can get away with. If the broken windows theory were applied to the police, many if not most of the policing problems would gradually disappear. The cops aren’t dumb, they would learn pretty quickly what the new rules were and adjust their behavior.

2

So, it’s not even really the prosecutors who are the problem, it’s the juries – that is, all of us. As you suggest, maybe this is changing. The recent BLM protests, in which white people have heavily participated, and the broadening of that movement to address police misbehavior more broadly, suggest that maybe – just maybe – juries will tend to become more willing to convict cops.

Then maybe more prosecutors will be willing to prosecute.

3

When I think about prosecutor reform, it is usually more like “prosecutors should make clear that they aren’t going to prosecute lesser offenses”. For example, the DA might tell the police department they won’t prosecute anyone brought in for marijuana possession. During the epidemic, the prosecutors might tell police they won’t prosecute minor offenses like traffic violations. These suggestions invite debate over the rule of law versus harm reduction.

Tom_Terrific seems to be more worried about corruption and perverse incentives in the prosecutor’s office. I agree that the prosecutor-police relationship invites corruption, simply because they depend on each other and share a similar motivation to enforce the law. I think this is why we elect most (local) prosecutors, as a check on corruption. If the police are out of line and the prosecutor is abetting their crimes, then in theory the people would vote out the head prosecutor (and maybe the police chief, too).

Making the prosecutor an elected official introduces a new and perverse incentive: personal political ambition. One example would be a refusal to back down after seeing exculpatory evidence. If I remember correctly the North Carolina Bar Association cited the prosecutor’s upcoming reelection as a motivating factor in his handling of the Duke Lacrosse cases. But is political ambition generally a motivating factor when prosecutors hesitate to indict police officers?

I have no doubt that more than a few prosecutors consider how indicting a police officer will affect their reelection prospects. But I also think there are at least two other major factors: an existing bias towards the police officer (based on the prosecutor’s personal relationship with the police) and issues of resource allocation for prosecuting cases. In list form, I have in mind three factors or biases:

The prosecutor is biased in favor of the police, due to his or her close working relationship with the police.
The prosecutor is biased for or against the police depending on the local political situation, due to personal political ambition.
The prosecutor is biased against indictment of any weak case due to limited resources.

Having established my own mental model for prosecutorial behavior, what reforms will encourage prosecutors to indict police officers who (in my opinion) should be indicted?

The most obvious reforms do not really count as prosecution reform - things mentioned by Tom_Terrific. For example, new recording technology like body and dashboard cameras serve to strengthen the case against police officers who do wrong. By providing hard evidence of wrongdoing, such technologies work to make a strong case against the police officer, which in turn weakens prosecutor bias no. 3 (biased against indictment of weak cases). Another example is shifting public opinion and with it the local political situation. In theory, if local voters think a particular police officer should be indicted (and that the prosecutor should be held accountable for non-indictment), then a prosecutor facing reelection will take that into consideration under prosecutor bias no. 2 (biased due to personal political ambition).

And so from a theoretical standpoint I think bias no. 1 & 2 cancel out, and we are left with bias 3 which is reasonable in my opinion.

I am curious as to what kind of reforms the OP had in mind. Simply declaring that prosecutors shall indict police officers from now on won’t fly with me - that’s the goal (

4

I think?), not a reform.

What about making prosecutors appointed officials instead of elected officials? As far as I know, the U.S. is the only country in the world to elect its prosecutors. Even here we don’t elect federal prosecutors, and I don’t think Alaska/Connecticut/New Jersey/D.C. elect their prosecutors. Maybe everybody else is on to something!

I don’t think appointing prosecutors really solves the problem. It’s not like the political ambition is going away - we’re just pushing it off of the prosecutor and on to whoever makes the appointment. If the governor is appointing prosecutors, then the prosecutor is biased for or against the police depending on the governor’s political preferences, which in turn depend on the statewide political situation. Statewide politics is less receptive to the citizens in a particular district than local politics. We are also introducing a new perverse incentive for corruption between the prosecutors and the governor.

~Max

5

Does the OP have any evidence (preferably stats and not anecdotes) for the proposition that DAs won’t prosecute cops charged with serious offenses, other than “I believe”?

6

Glancing at a few articles seems to at least confirm the notion that police will do things they shouldn’t knowing the DA isn’t likely to charge them for it.
"Openly lawless behavior by police officers thrives on their belief that they have a license to be brutal and that no one will hold them accountable for their actions. ". That article was written by someone that “prosecuted police for misconduct at the Justice Department for 15 years”.

I know somewhere along the way I heard or read that when it’s a he said/she said thing, they (judge jury etc) will assume it’s the officer telling the truth and the accused lying. Furthermore, I recall hearing that PDs would make a point of arresting someone due in court (against them) for anything, even if it’s a BS reason and they’re released an hour later. The reason being that now the officer’s defense team can make statements like “Who are you going to believe, the person that’s been arrested 3 times in the last 6 months, or one of [city’s] finest, putting himself out there everyday to protect you and your family?”

Moving on…would it change anything if officers had to be prosecuted by someone outside of their own jurisdiction? That is, maybe cases involving police officers had to be reviewed/charged/tried at the state level? It seems like it could help when the officer and the person charging the officer haven’t known each other for 20 years.

7

Although I think such an assumption is legally unfair, it is in my opinion a reasonable inference. That is to say, I think it is reasonable to assume that suspects lie more often than the police. Nevertheless, juries should be instructed to afford police testimony no more weight than any other witness testimony - possibly less weight if defense can convince the judge that the police have a vested interest in the outcome of the case. If a juror cannot put aside his or her biases and render a fair verdict, he or she should (in theory) be removed for cause. In a he-said she-said situation, the presumption of innocence should work to the defendant’s favor. When it is a police officer who is accused of some crime, the presumption of innocence should work to their favor as with any other defendant.

One thing they might do is let a grand jury decide whether to indict the officer. It doesn’t make much sense to suggest that a state prosecutor take over when often times the state prosecutor is already the one handling the case. There isn’t always a higher rung of state prosecutors to turn to for cases at trial - in Florida we have our twenty state District Attorneys. The office of Attorney General is specialized for cases in higher court - they don’t work with juries and they don’t make decisions about indictment. Plus, someone from the AG office is likely to be even more “tough on crime” and pro-police. At least with the local DA you have the option, as an individual, to convince your local community to pressure the DA to indict on the merits. The people you need to convince at the local level will be more familiar with the police department under scrutiny - the higher up prosecutors are, the more difficult it is to mount a pressure campaign.

Another alternative is to let the federal government prosecute. There are two major drawbacks to this. First, some state constitutions forbid state prosecution for an offense prosecuted under federal law (eg: New York Constitution article 1 section 6). The federal constitution does not prevent that sort of double jeopardy, see Abbate v. United States, 359 U.S. 187 (1959). In practice the federal government prefers to let states prosecute first, thus reserving the right to try the defendant a second time. The second reason is that federal prosecutors have to go for different sets of charges than state prosecutors. A state prosecutor can charge a police officer with murder, manslaughter, or even criminal negligence. This last item only requires that the state prove beyond a reasonable doubt that the officer used lethal force absent fear for his or her safety. Federal prosecutors can only charge an officer with intentional deprivation of someone’s civil rights. Intent is required under 18 U.S.C. 241 and 242, see United States v. Guest, 383 U.S. 745 (1966) and Screws v. United States, 325 U.S. 91 (1945) respectively. This means in practice it is even harder to get a guilty verdict when the federal government prosecutes.

Also, federal prosecutors still work with local police departments. Not as frequently as the local DA, though.

~Max