How Prosecutors ‘Enable’ Police Misconduct

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Police violence against civilians is enabled by prosecutors who turn a blind eye to officer misconduct as part of a “culture” that rewards tough-on-crime strategies with career advancement, according to a Boston University Law Review paper.

Arguing that the popular focus on identifying and punishing the actions of individual officers—or so-called “bad apples”— is misdirected, the paper maintains that little will change unless reformers focus on ending the “codependence” between prosecutors and police.

“Would America’s current level of police violence and misconduct exist if prosecutors instead used their discretion and power to exert basic oversight upon law enforcement?” ask authors Somil Trivedi and Nicole Gonzalez Van Cleve.

Trivedi, a senior staff attorney in the Criminal Law Reform Project at the American Civil Liberties Union, and Van Cleve, an associate professor in the Department of Sociology at Brown University, analyzed a series of U.S. cases involving alleged officer misconduct that illustrates what they say is a pattern of mutual dependence and “cultural norms….that allow police to influence prosecutorial discretion over police accountability.”

They contended that prosecutors, the most powerful players in the U.S. justice system, manipulate both legal and extralegal tools to “protect their police benefactors—and themselves in the process.”

“Police misconduct,” they concluded, “needs prosecutors to enable it.”

The paper was written before the latest series of incidents involving the deaths of unarmed civilians in police custody, such as the killing of George Floyd in Minneapolis, who was detained May 25 for passing a bad check and died when an officer kept a knee pressed on his neck for nearly nine minutes.

The officer involved has been charged with second-degree manslaughter, but the authors’ analysis of similar cases suggested he is likely to escape criminal punishment.

The paper, entitled “To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct,” argues it has historically been in the self-interest of both police and prosecutors to allow officers to evade the consequences of their actions.

‘Shading’ the Case

One method for influencing prosecutorial behavior, according to the paper, is “shading”: the practice of police officers consciously framing information in reports or testimony to make their case more convincing—with little due diligence exercised by prosecutors.

“Shading could include altering the amount of drugs seized at the scene, modifying the weight or height of a suspect on a police report, or blatantly misrepresenting how evidence was obtained.”

Shading helps to “stack the deck” in favor of the state, depicting the officers in question in a “better light.”

The authors cited interviews with prosecutors to describe how officers often use intimidation tactics against them.

“Prosecutors described this indoctrination and socialization as ‘prosecuting with the blinders on,’ meaning that prosecutors were forced to abandon many of the principles learned in law school (about the ethical ways to seek justice) and instead to give nearly complete deference to officers and ignore any miscarriages of justice,” they wrote.

In a sense, if the prosecutors “saw” something, they didn’t “say” something.

But prosecutors themselves eagerly allow themselves to be used, conscious of the rewards in career advance and reputation.

Culture of Compliance

The “culture of compliance” serves the interests of prosecutors who depend on police cooperation to strengthen win guilty verdicts, and are thus “unwilling to jeopardize the flow of criminal cases and helpful testimony that police officers provide,” the authors wrote.

The process often starts at the beginning of a young prosecutor’s career.

The authors described the “socialization” process this way:

A junior prosecutor is reliant on the testimony of police to earn the bench and jury trial convictions necessary for promotion. Perhaps the police officers on their cases begin “forgetting” their appearance dates. Perhaps the junior prosecutor starts hearing rumors through management that they are difficult to work with. Perhaps cases start moving off their desk and onto the desks of other prosecutors more willing to play nice with police.

 In time, these prosecutors who would not step in line would ultimately be marginalized or pushed out of the office entirely.

The authors cited a 2010 study of 8,300 misconduct accusations involving almost 11,000 officers. Of the total, only 3,238 accusations resulted in legal action of any kind, and only 33 percent of those charged were convicted.

Another Department of Justice study of the Chicago Police Department found a systemic pattern of compliance between prosecutors and police officers that ensured punishment for misconduct was a rare occurrence. Between 1988 and 2020, there were 247,150 citizen allegations of misconduct, but only seven percent of the cases resulted in discipline of the officers involved.

Even when a police officer is singled out for misbehavior, the underlying system in which prosecutors and police co-opt each other is never challenged, the authors wrote.

Ignoring Misconduct

The paper also described it as a “culture …of silence and violence, where police actions in the streets are expected to be concealed or at least ignored by organizational actors in the criminal legal system.”

Fixing the system requires resetting the cultural norms that have operated in the system for decades, the authors said.

The reforms should concentrate in three areas:

  • Strengthening civilian oversight of the police;
  • Incentives by authorities to stop shielding police from the impact of their actions by fining both police and prosecutors when officers are found guilty of misconduct;
  • More “democratic engagement” by voters, legislators and the media.

“We can consider the system “reformed’ only when the codependent police-prosecutor culture is changed permanently and fundamentally from within,” the paper said.

The complete article can be downloaded here.

This summary was prepared by TCR news intern Sarah George

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