Police and Prosecutors: An ‘Unholy Union’?

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The close collaboration between police and prosecutors can impede justice reform if the lines between these two critical players in the system become blurred, warns a professor at the Northern Illinois University College of Law.

The collaboration is often a hidden driver behind the opposition to “progressive” DAs around the country, wrote Maybell Romero, in a recent paper posted on the Social Science Research Network (SSRN).

The most notable recent example, she wrote, came in 2018 when assistant prosecutors in St. Louis County joined the St. Louis Police Officers Association in protest against the election of prosecutor Wesley Bell, who campaigned on a platform that included opposing the death penalty and treatment instead of jail for minor drug offenders.

While a police-and-prosecutors union may be a rare case, Romero said it signaled a disturbing trend.

“Close cooperation between prosecutors and police….has started to extend beyond just plea bargaining and trial preparation,” she claimed in her paper, entitled Prosecutors and Police: An Unholy Union.

“Police and prosecutors have begun in some cities to work together to influence policy and to flummox criminal justice reform.”

Untangling the often mutually dependent relationship between police and prosecutors has always been difficult, although by  tradition they are separate entities.

Romero quotes the opening lines to the popular Law and Order TV series as the standard definition of their separate roles:

In the criminal justice system, the people are represented by two separate, yet equally important, groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.

But in practice, representatives of the two offices see themselves as co-partners in the fight against crime in a symbiotic relationship—facilitated by after-hours friendship and  sometimes sexual relationships—that is often linked to partisan, political goals.

In St. Louis County, which Romero calls “ground zero” for the unionization of local prosecutors, the two groups saw the election of a “progressive” prosecutor as a threat to public safety.

That, in effect,  represents a logical extension of the lobbying activities of the National District Attorneys Association and state affiliates against growing support for overturning the “tough on crime” strategies of previous decades, Romero wrote.

The tightening relationship has alarmed local community groups.  Rashad Robinson, the president of the civil rights group Color of Change, said the St. Louis unionization effort creates a “risk” of conflict of interests, the Associated Press reported.

Prosecutor Bell agreed, noting that “not only does it create conflict, but when we’re trying to build trust with the community, law enforcement and the prosecutor’s office, it’s simply unacceptable and I for one will not tolerate it.”

But even if they don’t form unions, “fraternization” and political collusion between police and prosecutors threatens the equitable administration of justice, Romero said.

“Police have been shown to exert a great deal of power not just in how a prosecutor prepares for trial, but also how prosecutors engage in plea bargaining,” she added,

The roots of the intertwined relationship can be traced back to the post-Civil War Reconstruction era when “prosecutors and police worked together to undermine the gains made by formerly enslaved blacks, [by prosecuting] lien laws for landlords, vagrancy laws, law criminalizing luring workers from current employment with the promise of better wages and conditions, as well as laws criminalizing walking off the job, she wrote.

And it has continued into the modern era with police financial support for favored candidates in prosecutors’ races.

In another example cited by Romero, police associations from San Jose and Los Angeles donated nearly $600,000 to DA’s during 2018 elections in the Bay Area, including Alameda District Attorney Nancy O’Malley who was fighting off a challenge by civil rights attorney Pamela Price.

The paper called on local authorities to prevent joint unionization of police and prosecutors as part of efforts to ensure that the two sides adhere to the ethical standards created by the American Bar Association, which exhort prosecutors to “keep a respectful professional distance from police.”

“Both actors should not be permitted to allow their respective roles to become so intertwined and mingles that the independent purposes of both jobs are lost,” Romero wrote, adding it was essential to avoid the appearance of “impropriety and bad judgment.”

This is particularly true in investigations of police misconduct, she wrote.

“Prosecutors often seem unwilling to initiate prosecutions against police officers who employ excessive force, even when that force sometimes leads to death,” she noted.

Other police observers have made similar warnings. Romero cited Samuel Walker, professor emeritus at the University of Nebraska, and a national expert on policing, as saying that prosecutorial inaction of investigations of police is often a result of the fact that prosecutors “work with police day in, day out”—putting personal relationships and biases ahead of seeking justice.

“Rather than identifying so closely with the police function, prosecutors should instead work on changing their organization cultures such that they work more stridently toward ensuring the health of their respective communities,” the paper said.

One way to get there, according to Romero, is to borrow a page from the medical profession’s modern approach to ensuring that the stricture to “do no harm” is uppermost in their strategy.

“This sets the tone for their work in the criminal justice field to be that of assistance and setting a wrong, right,” she wrote.

However, she added, if there is harm done, it should be investigated the same way malpractice is: “with a view to preventing similar failures in the future.”

The partisanship has hardened since a so-called wave of “progressive” prosecutors were elected around the U.S., arousing opposition from more conservatives DAs and police.

Philadelphia District Attorney Larry Krasner, a former public defender who is one of the most well-known progressives, withdrew his office from the state’s  largest prosecutors’ association in November 2018, saying the group has supported regressive or overly punitive policies and represented “the voice of the past.”

Earlier this year, the head of the city’s police union accused Krasner of seeking to “destroy criminal justice.”

Similarly, some local judges, police and prosecutors have issued scathing criticisms of Boston DA Rachael Rollins who is pursuing campaign pledges to reduce sentencing and find alternatives to prison for minor offenses.

See: Why (DA) Rachael Rollins makes Boston’s ‘Courthouse Regulars’ Nervous,” by James Doyle, The Crime Report, July 15, 2019.

 The full paper can be accessed here.

TCR staff reporter Andrea Cipriano contributed to this summary.

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