As St. Louis County Prosecutor Robert McCulloch presented the case for charging Ferguson police officer Darren Wilson privately before a grand jury, protesters stood outside calling for his removal. They cite McCulloch’s support for police officers in another police misconduct case, and a family history that includes many family members on the police force including his father, who was killed by a black man with a gun.
Among those calling for McCulloch to step down are the NAACP and one of the oldest African American bar associations in the country. But Missouri Gov. Jay Nixon (D) has said he won’t remove McCulloch. That’s not surprising. McCulloch’s ties to the community and sympathy for the police force are similar to those of many prosecutors. Instead, the problem is a broader one: Prosecutors are not institutionally well suited to bring cases against their own police departments.
Prosecutors are law enforcers, like police. In most every case they take, they rely on police to provide them with cases, make arrests, present evidence, and even testify at trial. If prosecutors can’t work with cops, they can’t convict anybody. And they don’t want to alienate those very same people, particularly because they often maintain personal relationships. As a result, when faced with a case charging the police, “prosecutors face enormous pressure from both police and fellow prosecutors not to go forward with such cases,” explains law professor David A. Harris in a law review article on police accountability.
Many local prosecutors are also elected, and thus face external political pressure not to go up against the police. “[T]he election of local prosecutors makes bringing these cases very difficult and quite uncommon, even instances of serious abuse of citizens,” Harris explains. Prosecutors who go up against cops may be painted as soft on crime. And police unions are particularly well positioned to exert negative pressure on prosecutors during their re-election campaigns.
While there is an unfortunate dearth of national data on how often police are prosecuted or otherwise held accountable, available local data suggests it is almost never. A 2005 Los Angeles Times review, for example, found that just 3 out of 314 cases of alleged excessive force in the prior four years led to criminal charges. In New York, despite many fatal shootings, not one officer was convicted of homicide for an on-the-job shooting between 1977 and 1995. A Human Rights Watch report on the problem cites prosecutor unwillingness to pursue charges as a major cause.
After many prominent deadly police shooting, those who study police accountability have called for the creation of special independent prosecutors to take on these cases. “District attorneys are so loath to investigate and charge the police they work with every day,” prominent constitutional law law professor and U.C. Irvine law school dean Erwin Chemerinsky said after revelations about years of Los Angeles Police Department corruption known as the Rampart Scandal. “It’s naïve to think that the district attorney is going to be that external oversight for the police.”
In the 1970s, New York tried to address this issue by creating an Office of the Special Prosecutor. But the office was killed by the legislature in 1990, citing a lack of funding. That office was replaced the following year with an Anti-Corruption Unit, which, while a separate unit, was a part of the District Attorney’s office and thus not insulated from political pressure. Lawrence Stephens, who oversaw the state’s Anti-Corruption Unit shortly after its formation, said in a 2001 interview he thought disbanding Office of the Special Prosecutor was a grave mistake.
Many have argued that federal prosecutors are better positioned to take on these cases. But they don’t play the same role. Federal prosecutors can file charges in cases in which officers have violated an individual’s constitutional rights, which makes their investigations as important as the local ones. But it is the local authority along with a grand jury that decides whether to prosecute a local case of homicide.
Since a 1994 law, federal authorities can also play a broader role by identifying police departments with a “pattern or practice” of unconstitutional civil rights violations. Under Attorney General Eric Holder, the Justice Department has been vigilant against a number of police departments, issuing scathing findings that have exposed the breadth of systemic police misconduct. These investigations typically result in agreements known as consent decrees in which departments agree to federal oversight and reform to escape a lawsuit by the Department of Justice. And they are key to imposing institutional reform. But these reforms affect the training, rules, and discipline imposed by the Departments, and in the most egregious cases that isn’t enough.
Take the case of Mersed Dautovic. Dautovic was fired after he stopped a young black couple one evening and beat one passenger so bloody with a bat that a witness said it looked like he was chopping wood. But Dautovic was strongly supported by the local police union, and on appeal, the Civil Service Commission overturned his firing. Dautovic has since been convicted and sent to prison, but his department’s punishment didn’t stick.
Convictions against police officers are also incredibly hard to come by, even when prosecutors do file charges, as juries also tend to side with police. Add to that the racial biases that mean black men like Michael Brown are more likely to be perceived as “dangerous,” and it will take a particularly hard-charging and committed prosecutor to overcome all of the obstacles to getting justice against a police officer.