Prosecuting Our Police

Although we are touching on the abuse of power by police officers and the failure of our prosecuting authorities to indict them in the other thread, I think this is a distinct topic. I am curious to hear how you would reform the various police forces across the country if you were putting forward a plan to avoid what appears to be sub-optimal outcomes in the prosecution of police officers who have killed minorities (specifically African-American males).

I probably have a different take than most. I think part of the problem lies within police culture, but I also think the failure of our prosecutors to be independent of the police results in less vigorous efforts to prosecute officers than ordinary citizens. I think that if police officers knew they would be facing a credible prosecution they would be effectively deterred.

Most da's offices have their own division that is responsible for prosecuting police officers. In my view such a division can still be subject to all sorts of political pressure not to aggressively prosecute since they act under the authority of the same district attorney as prosecutors in civilian cases. Prosecutors depend on the goodwill of the police department to do their jobs in other cases. None of their decisions are really independent because DA's offices work closely with the police on a daily basis.

Yet, how are ordinary prosecutors beholden to citizens? Well wealthy ones may be able to wield political influence or withhold donations but in over 99% of the cases, there is no conflict. Yet prosecutors seem to be sandbagging the prosecution of the police. If there were an independent authority, with its own division head, it would force the same accountability on police officers as there is on ordinary citizens. Some allowance is automatically made in the judicial process for the circumstances any person faces and police officers often face extraordinary situations.

Yet, it makes sense that police officers do not investigate themselves and there is an IA division to investigate. But I think there should be a special prosecuting authority however cumbersome it would be to implement. The special prosecutors would have the same obligations as ordinary prosecutors to turn over exculpatory evidence and procure just outcomes. What's your take?

Two things. I meant for the thread to be a discussion of the solution to the problems posed by police officers in major cities who have used excessive force. i see I titled it with my opinion of a good solution but I welcome other ideas...it is a broader topic.

Also, I typed this idea into google "police special prosecutor" and I see the idea already has some traction so it wasn't a very original idea since the police already do not investigate themselves. I think it would be helpful...these would not be witch trials for the police, just trials prosecuted by an authority independent from the police.

http://www.nytimes.com/roomfordebate...thies-for-cops

I thought this was a helpful comment from a former prosecutor. Prosecutors see themselves as being on the same team as police officers. You can't have an adversarial system where one side pulls their punches.

P.S sorry last post

I agree with both approaches: 1) changing the culture within law enforcement and 2) work out a legal runaround so prosecutors do not hold preliminary or grand jury hearings or prosecute cases against the very enforcement offices with which they work everyday.

Item (1) is going to be very slow going and difficult to change. State and Federal oversight of hiring practices, promotions and assignments could play a role. Cameras should be used. Some State had laws against filming the police while in performance of their duties. If any of these laws are still on the books they should be eradicated (Illinois just recently got rid of their no-filming law. Many officers are fearful of large black men or suffer from racial biases. They should be identified, retrained or retired. Law enforcement as a whole could be retrained to have less reliance on the use of lethal threat and lethal force.

I’m wondering if item (2) could be addressed by a simple prosecutor exchange program, kind of like change of venue except instead of changing the location of the grand jury hearing, one brings in a prosecutor who doesn’t ordinarily deal with the police department whose officers are under investigation.

That could probably work Trish. It would also keep police officers from feeling like they are being prosecuted by a group of prosecutors who have a bias against them. And it would eliminate the most obvious source of bias (their direct contact with those officers as a part of their daily tasks). But I wonder if a prosecutor who mostly handles civilian cases would actually prosecute police officers with the kind of zeal they do the average person.

A prosecutor is naturally going to see the individual the police officer harmed as a criminal (or potential criminal) since that's the paradigm they're used to seeing. I think that type of thinking is ingrained in their minds since they handle so few cases of police misconduct and so many cases where the boys in blue are testifying for them...

However, if there's a special division, that is not accountable to the state's attorney/district attorney, I think they'd be more likely to treat the prosecution of police officers as their responsibility and not an aberrant situation they handle reluctantly. It's their job to respond in those rare cases when police officers engage in misconduct and as prosecutors they will have developed some fluency in dealing with the special issues that arise in prosecuting officers (biases in jurors etc).

One other source of bias is that it takes time for prosecutors to develop strategies for dealing with tricky issues at trial; ie. recanting witness, describing a defendant's consciousness of guilt, how to get the jury to understand the usefulness of circumstantial evidence. They would also probably have a learning curve in explaining to the juries that people who are ordinarily guardians of the law can also break it.

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Originally Posted by trish

Some State had laws against filming the police while in performance of their duties. If any of these laws are still on the books they should be eradicated .

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I agree with your other points but this is absolutely certain. These laws do not preserve justice but obstruct it.

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Originally Posted by broncofan

...I wonder if a prosecutor who mostly handles civilian cases would actually prosecute police officers with the kind of zeal they do the average person.

A prosecutor is naturally going to see the individual the police officer harmed as a criminal (or potential criminal) since that's the paradigm they're used to seeing. I think that type of thinking is ingrained in their minds since they handle so few cases of police misconduct and so many cases where the boys in blue are testifying for them...

However, if there's a special division, that is not accountable to the state's attorney/district attorney, I think they'd be more likely to treat the prosecution of police officers as their responsibility and not an aberrant situation they handle reluctantly. It's their job to respond in those rare cases when police officers engage in misconduct and as prosecutors they will have developed some fluency in dealing with the special issues that arise in prosecuting officers (biases in jurors etc).
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I agree, a special division would be better, but more expensive because it adds the cost of additional personnel to already strained State and municipal budgets. I was just being cheap.

I was wondering: don’t most police departments have an internal affairs division devoted to the investigation of police misconduct. Do they work? Do prosecutors work with them? If so, why aren’t they working in Ferguson or in the Garner case? Being internal, are they just too close to problem to be unbiased? Would a barrier between Internal Affairs and the general department help or hinder their work? I realize (I think) this is a separate issue, distinct from having an independent division of prosecutors devoted to prosecuting enforcement malfeasance.

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Originally Posted by trish

I was wondering: don’t most police departments have an internal affairs division devoted to the investigation of police misconduct. Do they work? Do prosecutors work with them? If so, why aren’t they working in Ferguson or in the Garner case? Being internal, are they just too close to problem to be unbiased? Would a barrier between Internal Affairs and the general department help or hinder their work? I realize (I think) this is a separate issue, distinct from having an independent division of prosecutors devoted to prosecuting enforcement malfeasance.

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I think most police departments have an internal affairs division that works outside the normal chain of command to investigate police officers. You're right that this is a separate issue as they initiate any scrutiny into whether wrongdoing has taken place and then gather the evidence, but the district attorney's office presents it to the grand jury and if indicted a jury. I could be wrong but I think the breakdown took place at the level of the prosecution; when they actually took the evidence they had before the grand jury, they seemed to want to offer an even-handed presentation. States differ in the amount of protections but typically grand juries have exceedingly high indictment rates because they are only making probable cause determinations. I interned at a State' Attorney's office after my first year of law school, and a grand jury would often indict based entirely on the observations of a police officer in his/her statement of probable cause.

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Originally Posted by trish

I was wondering: don’t most police departments have an internal affairs division devoted to the investigation of police misconduct. Do they work? Do prosecutors work with them? If so, why aren’t they working in Ferguson or in the Garner case? Being internal, are they just too close to problem to be unbiased? Would a barrier between Internal Affairs and the general department help or hinder their work? I realize (I think) this is a separate issue, distinct from having an independent division of prosecutors devoted to prosecuting enforcement malfeasance.

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In Ferguson, the who police department pretty much stepped aside and let the state take over. My opinion (somewhat from the inside) is that on a big force, an internal affairs division, by whatever name, can work. Work means the command staff has an independant body to enforce ethical behavior if it uses them properly. In a small department, an IAD doesn't work, and it's more or less left up to the command staff.

BTW, if you wonder how an IAD division interacts with police use of force, google LASO (it oculd be PD, but I'90% sure it's the SO) use of force. It reads like a army manual in that they tried to identify a bizzilion levels of force ranging from contact to strikign the head, kicking the head, shooting a firearm, and taking a life with a firearm. It's also remarkable in it's use of fuzzy logic- It never says you can't shoot a suspect in the back, it just establishes that the wrath of god will come down on you if you did (if you saw the DC sniper walking away from the scene of a crime, who wouldn't see a legimitate reason to shoot him in the back even though he doen't present an imediate danger to the public.)

My views on big city police (having grown up in a rural Mountain state) was formed by 3 readings of Peter Maas' biography of Serpico, as a teenager. The book simply fascinated me. Despite all the ups and downs of the NYPD since the mid 70's, it's hard for me to have anything other than Serpico's own cynical view of big city police depts. I have followed many stories of police dept corruption through the decades and my cynicism has only hardened. I think the position of police officer, itself, is in some ways beyond reform.

I believe you might be approaching reform from the wrong point, broncofan. I'm very skeptical of using prosecution as a means to achieve a desired objective. The war on drugs and the death penalty have failed to reduce drug dealing or murder.

I would start the reform efforts at the point where it might truly hurt them, i.e. in the pocketbook. But to do that would probably require dismantling or severely limiting the police unions. As an unapologetic liberal, that makes me uncomfortable, but it does boggle my mind that the last place unions remain strong are in police depts.

EDIT: one thing to add, related to what happened to Serpico and many others in our society who have stepped up to point out corruption... our country's dealing with whistleblowers is pathetic. Again, we should deal with laws on the books and practice by leaders to insulate and encourage whistleblowers, not crucify them.


But anyway, back to my proposed solution... provide financial disincentives for behavior you would like to discourage. Make it easier to fire a cop for killing a civilian. My God, at least do away with the incentives for rewarding a cop for killing a civilian as they do in Albuquerque, where more civilians are killed by cops per capita than anywhere in the country. Bad cops are allowed to kill over and over, and actually get bonus pay for it.

So I guess I agree with Trish to do what we can with bad laws, bonus incentives, etc., that are on the books. At least it might help some.

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Originally Posted by Odelay

I believe you might be approaching reform from the wrong point, broncofan. I'm very skeptical of using prosecution as a means to achieve a desired objective. The war on drugs and the death penalty have failed to reduce drug dealing or murder.
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The amount of deterrence a punishment will have differs based on crime. People who are addicted to drugs probably aren't deterred very well because they have a biological craving. People who commit crimes of passion probably would not be either since they act without much deliberation. Then there's the question of marginal deterrence. If you punish rape as severely as murder, then all rapists (those without conscience) would murder their victims because there's no margin of deterrence. So the amount of deterrence depends upon what punishment you are starting with. Police officers who commit violent crimes are often avoiding punishment altogether. So any potential punishment, if they believe they will face it, would be in stark contrast to a previous expectation.

You might get very little deterrence if you raise a prison sentence from ten years to 100 years. But someone who expects an acquittal will be more mindful if he faces the same system everyone else does and could go to jail.