Holding Police Accountable: My Proposed Solution to Assembly Line Justice
Our criminal justice system is broken. It protects its own actors, even as it commits acts of grievous injustices against innocent people, particularly people of color. Prosecutors are the most powerful agents within this system and therefore have significant responsibility for the function of the legal system. Yet, prosecutors prioritize the protection of the status quo rather than striving for justice by excusing misconduct and shielding police officers from accountability. I believe that combining prosecutors’ offices and public defenders’ offices into a single-office structure and rotating the attorneys through both positions would position the office as a more independent body with the ability and volition to hold the police accountable.
Prosecutors are the gatekeepers to the criminal justice system. With the power to charge, prosecutors decide who must argue for their freedom in the legal system and who is able to walk away from an accusation with no consequences. While prosecutors have vast discretion and very little oversight, they do not do their jobs alone. Prosecutors work with police officers in order to charge, prosecute, and convict people. This means that prosecutors have very close relationships with police officers. One scholar writes that “Almost no criminal case exists without the police as the first contact point.” Despite existing in independent hierarchical systems, “in practice, prosecutors depend almost entirely on police for the success of their cases, from charging to conviction.” This reliance on police officers makes prosecutors necessarily deferential to police: “Maintaining a good relationship with individual officers and the good will of a police department is essential to a prosecutor’s success in obtaining convictions, and thus to her professional life.” Even the American Bar Association recommends that prosecutors develop a close relationship with police departments.
It is not uncommon for police officers to use excessive force as they carry out the duties of their job. This creates a substantial conflict of interest, as the prosecutors they work so closely with are the ones who must decide whether and how to prosecute them. A prosecutor’s decision on whether to charge a police officer is highly influenced by their reliance on police evidence: “The prosecutor’s job can be made extremely onerous if he does not have willing cooperation from the police, both in investigating and presenting evidence in court. As a consequence, the prosecutor sometimes finds himself compelled either to present charges against members of the police department for brutality or perjury — which impairs cooperation — or to condone or cover up police crime — which is unethical.” Even when prosecutors overcome interpersonal reasons to resist charging police officers, they might still refuse to charge police officers in order to avoid jeopardizing future cases that would become substantially harder to prosecute without police cooperation.
Recent public pressure has exposed the frequency with which prosecutors excuse and cover up police brutality. A Police Crime Database found that on average only 100 police officers are charged with murder or manslaughter in a year, despite the fact that about 1000 people are fatally shot by police every year. Even fewer police officers are ever convicted. In the case of Laquan McDonald, a 17-year-old Black boy shot and killed by Chicago police in 2014, Cook County State’s Attorney Anita Alvarez protected the police officer until public outcry forced her to change positions. McDonald was shot 16 times while he was walking away from the police officer. The prosecutors’ office did not announce any charges for 400 days after the shooting happened and refused to release the footage of the shooting. Finally, a judge ordered that the tape be shown to the public, and Alvarez charged the police officer for murder the day before the tape was released.
Prosecutors’ close relationships with police officers do not only shield police officers in cases in which they are accused of crimes; prosecutors often cover for police misconduct in ways that violate the rights of other accused individuals. Prosecutors are obligated to disclose evidence to the defense that could be used to argue for the innocence of an accused person. To meet this requirement, prosecutors are supposed to keep lists of police officers with a history of misconduct or lying and notify the attorney for the defense when any officer on that list is involved with their case. Complying with this law, however, may damage a prosecutor’s relationship with the police department and undermine their case, so many prosecutors do not disclose prior police misconduct. In fact, one former prosecutor has stated that “a prosecutor’s main function in many trials is to ensure that the judge and jury believe the police officer’s testimony.” At least 300 prosecutors’ offices across the country do not have lists to track police officers involved in misconduct, and some of the places that do maintain lists keep them private, so it is impossible to know whether they are disclosing all of the required information.
In service of protecting police officers and securing convictions, some prosecutors willfully hide evidence that could cast doubt on their case, which violates Brady requirements and increases the likelihood of wrongful convictions. Failing to disclose this evidence has resulted in thousands of people who have faced criminal charges or gone to prison based on the testimony of police officers who have known credibility problems. Revat Vara is one of those individuals; in 2006, he was pulled over for a missing license plate and told to walk in a straight line. He maintained that he passed the sobriety test, but the officer who pulled him over testified that he did not. Vara’s attorney was not told that the officer had been found guilty of misconduct by the police department 35 times. Specifically, the officer lied about people driving while intoxicated so that he would be paid overtime for testifying at their trials. It was Vara’s word against the police officer’s; the jury believed the officer, and Vara was found guilty. Because of Vara’s prior offenses, he was sentenced to 25 years in prison.
I propose that combining prosecutors’ and public defenders’ offices into a one-office system in which attorneys have to rotate through both positions would ameliorate the unfair protections currently afforded to police officers. First, this system would significantly change the relationship between prosecutors and police officers. Prosecutors would no longer have a “smooth working relationship with the police [that] naturally carries over outside of work [and includes a] ‘unifying influence of a shared commitment to “getting the bad guys,” hardened by the adversarial process, nurtured by mutual respect and need, and on occasion lubricated by alcohol.’” Instead, the attorneys who serve as both prosecutors and public defenders would not experience society as so clearly divided into police officers on one side and “bad guys” on the other. They would be less likely to create the kinds of personal relationships that prosecutors currently have with police officers, and therefore, be more open to prosecuting officers accused of crimes such as using excessive force. Police departments would also view the new one-office system differently, because they would have to work with the attorneys acting as prosecutors and they might also be represented by the attorneys acting as public defenders. These changes in relationships between prosecutors and police officers would reduce the possibility that the police department would retaliate for the prosecution of a police officer.
Additionally, attorneys who defend individuals that maintain their innocence despite police testimony to the contrary would be less likely to accept the perspective of police officers without question and more likely to require stronger evidence to prosecute someone. Prosecutors’ diligence in gathering strong evidence to prove a case would reduce the chances of frivolous charges and wrongful convictions. Attorneys serving as prosecutors would also be less resistant to disclosing evidence that could be used to argue that an accused person is innocent. The one-office system would make it much harder to hide evidence of police misconduct. The attorneys serving as public defenders would have a relationship with the police, too. This would make it extremely likely that the public defenders would be aware that certain police officers have a history of lying and they would have access to evidence of that fact in order to best advocate for the person whom they represent. Hopefully, the probability that an officer would be confronted about a history of lying on the stand would prevent officers from lying in the first place.
Prosecutors’ current relationship with police officers undermines justice for victims of police brutality and results in unfair trials where the rights of the accused are often violated. It is hard to doubt colleagues and friends, and even harder to question their actions and integrity. If prosecutors’ offices and police departments continue to maintain such close working relationships, it will continue to negatively impact the legal system by failing to hold police officers accountable and increasing the chances of imprisoning innocent people. A one-office system in which attorneys rotate between prosecutors and public defenders would create some much-needed distance between the police department and the attorneys, as well as a healthy suspicion of police officers’ actions that are not supported by physical evidence. This would result in more fair trials and actual accountability for police officers, changes that are desperately needed in our legal system.
