The Volokh Conspiracy

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Volokh Conspiracy

Who prosecutes the police? Perceptions of bias in police misconduct investigations and a possible remedy


The recent grand jury decisions not to return charges in the police-caused deaths of Michael Brown and Eric Garner have, to put it mildly, not been met with universal approval. Protesters have challenged not only the substance of those decisions, but more broadly the process by which those decisions were reached. I have defended the substance of the grand jury's decision not to return charges in the Brown case, citing the officer's testimony, the physical evidence, the eyewitness testimony, and the lack of credibility of Brown's best friend's story. But while I have defended the fairness of the grand jury process, I also agree that the process could have been better: The process could have been run by someone who had more distance from the local police officer under investigation.

Demonstrators in Times Square protest a grand jury decision not to charge a New York policeman in the chocking death of Eric Garner. (Mike Segar/Reuters)

While it is not necessarily an inherent conflict of interest for a local prosecuting attorney to conduct an investigation into allegations of misconduct by police agencies that he works with regularly, it can create the perception of bias. Brian Beutler in the New Republic calls it a "legal flaw" for "local prosecutors investigate the officers on whom they rely for evidence, cooperation, and political endorsements." The argument has some force to it. A district attorney's office that is one day calling a police officer to the stand as a critical witness may have a difficult time the next day investigating that same officer and charging him with a crime. "Conflict of interest" is not the best phrase for describing the problem, as that phrase as various meanings that tend to coalesce around certain incompatibility of interests that an attorney owes to his clients. The issue is probably better captured by "perception of bias"—i.e., that the public tends to wonder about whether prosecutors like the St. Louis County Prosecuting Attorney's Office or the Staten Island District Attorney's Office have been fair and thorough in developing charges against officers from local police agencies.

To remedy this problem, some (like Beutler) have proposed that special prosecutors should handle criminal cases involving alleged police misconduct. Others have gone further. For example, Al Sharpton has reportedly called for a march on Washington in support of a new policy stripping local and state prosecutors of the ability to prosecute police, placing that power in the hands of the federal government.

These extreme measures would be examples of a cures worse than any disease. The flaws of special prosecutors are well-known and include lack of oversight and the almost inevitable tendency to single-mindedly pursue far-fetched legal theories. Eugene Volokh's posts on the dubious charges being pursued by the special prosecutor in the case against Texas Gov. Rick Perry provide one recent illustration of the problem. And placing power for prosecuting state and local police in the hands of federal authorities would actually make prosecution more difficult, as the federal government has only limited authority to pursue criminal charges against state officials.

A less extreme—and more politically and practically viable—solution to the problem is at hand. States should consider transferring authority for the investigation and prosecution of police-caused deaths and other serious forms of alleged police misconduct to state attorneys general. All 50 states have an attorney general. In 43 states, the attorney general is popularly elected, and in most other states the attorney general is appointed—thus assuring some measure of political accountability. State attorneys general also have some familiarity with prosecution, policing and law enforcement issues, meaning that they would have the expertise to overcome the challenges that complicated investigations into alleged police misconduct will inevitably pose.

Moving responsibility from investigating (and, if appropriate, prosecuting) police misconduct to state attorneys general would not involve a major restructuring of criminal justice systems. In many states, the attorney general already possesses some ability to oversee and even step into local prosecutions. For example, in one 1997 case from New York, the governor directed the attorney general to take over a prosecution from the Bronx County district attorney where it appeared that the prosecutor was not going to enforce the state's death penalty. That kind of authority could be used or expanded to more broadly place state attorneys general in charge of investigations and prosecutions of police officers.

Moving responsibility from local prosecutors to attorneys general might also attract the kind of broad political support that will be necessary for making changes. Those who believe that local prosecutors are too chummy with local police agencies should be pleased. And law enforcement advocates might also be willing to repose trust in the popularly-elected, chief law enforcement officer of the state.

In my home state of Utah, the idea of moving responsibility for investigating police shootings to the Attorney General's Office is under serious consideration. Other states might do well to think about this approach as a compromise idea that brings greater credibility to whatever prosecutorial decisions are ultimately reached whenever substantial criminal allegations are lodged against police officers.

Full disclosure: I have informally consulted with the Utah Fraternal Order of Police about possible legislation that would change the way police shootings are investigated in Utah.

Update: As reported by the Wall Street Journal, one idea for investigating police-caused deaths is to use an inquest—a procedure that used to exist in this country. Another idea is to use private prosecutions (i.e., prosecutions brought by the aggrieved victim of the crime or his family)—something that I have blogged about previously. In my post today, I focus on the idea of shifting responsibility to Attorneys General because I think it is realistic and politically-achievable.