How Private Prosecutions Could Help Stem Police Brutality

Police brutality remains in the news this week, as it has been off and on since 2014. People–disproportionately people of color–continue dying at the hands of law enforcement at a rate of approximately 3 per day. It’s true that not all of these deaths happen under suspicious circumstances that suggest wrongdoing. But many do seem thoroughly unjustified, including two that we wrote about recently.

In the most egregious cases, like that of Walter Scott, there’s a chance of police being charged with a crime. But this is the exception, not the rule. In 2015, eighteen officers faced charges of manslaughter or murder related to an estimated 990 individual deaths, which was actually a significant uptick from 2014. No officers were convicted on such charges during the year, though some, such as the Scott case, remained pending. Given that the United States criminal justice is not renowned for leniency, these are rather remarkable statistics. And the numerous individual cases, high-profile and otherwise, in which officers evaded convictions or even charges attest to the fact that something is deeply wrong. In spite of massive, regular protests in the wake of each new tragedy, the solution remains elusive.

Many good ideas have been proposed to help address the problem of police brutality, such as the slate of reforms promoted by Campaign Zero. But few people are talking about the most promising reform of all: Legalize private prosecution for police brutality cases.

Self-interest and Prosecution
This may sound at first like a radical idea, but it is not. In fact, it is not even a new idea at all. Under the English common law system, private prosecution was the norm. And this system was largely replicated in the American colonies. Thus, private prosecution was the dominant method of seeking redress in the US through the first half of the 19th century. It was only later that the role for government prosecutors gradually expanded and usurped the role of private prosecution. Today the practice is largely nonexistent in the US, even in states that still allow it in some form.

While the idea of having a lawyer prosecute and punish people for profit may seem ripe for abuse, these risks are constrained in an adversarial justice system like ours. In principle, it’s not different than the role of a private defense attorney. In our system, the prosecution is asked to present the best possible evidence in support of conviction; the defense is asked to make the best case that their client is not guilty; an impartial judge oversees the proceedings; and the jury (or judge) decides which side is right. In theory, we may think of the public prosecutor as pursuing some vague notion of justice. And on Law & Order, it might really work that way. But we can look any number of facts and events in the real world that would disabuse us of this idealism.

For instance, it is a completely standard practice to offer accused criminals a lesser sentence if they plead guilty to a crime than they would face if the case went to trial. This practice makes no sense at all if prosecutors are merely interested in justice–why in the world would justice require a different punishment for the same crime based on whether or not the prosecutors had to win at trial? Clearly, it would not. Additionally, prosecutors routinely cite conviction statistics when running for the reelection. But “justice” doesn’t care how many people were convicted; it would only care that they were treated fairly. From this, it’s fair to say that justice is not the core driver of many prosecutors today. Rather, many of them are motivated by something else, probably self-interest just like the rest of us.

So when a public prosecutor litigates a case, they are (generally) making the most compelling case they can to get a conviction. This is precisely what we would expect a private prosecutor to do in the same circumstances. In order to fulfill their client’s wishes, the private prosecutor must present the best case possible to bring the defendant to justice.

Conflict of Interest in Police Brutality Cases
While the incentives for private and public prosecutors may align in many cases, they are likely to diverge sharply when it comes to prosecuting police officers. Here, the public prosecutor knows that they must maintain a good working relationship with the police department, and they may even have personal relationships with some members of the police force from their day-to-day work. Just as important, police unions are powerful political entities that wield considerable influence in local elections. All of these forces make it much less likely for a public prosecutor to go after individual cops, even under circumstances that indicate wrongdoing. It might be the right thing to do, but it is likely to directly contradict their own self-interest. Going up against the police union is not a battle they are likely to win.

It should not be surprising, therefore, that many police killings result in no charges whatsoever. Frequently, these cases involve extraordinary legal procedures to reach their conclusion.

Take, for example, the case of Michael Brown in Ferguson, Missouri. While there was no video footage in this killing, there was eyewitness testimony and sufficiently suspicious circumstances that the death sparked outrage and national attention. In this case, the prosecutor took the case to a grand jury and proceeded to present evidence in support of and against indicting the officer involved. The offending officer himself testified at length in the proceeding, effectively getting to present his defense.

This contrasts markedly with a typical grand jury proceeding, in which the prosecutor presents one side of the story and the jurors return the requested indictment. The purpose of the grand jury process is to throw out completely baseless charges, not to assess guilt of the defendant. And given the one-sided nature of the proceeding, prosecutors almost get the indictment they request–out of 162,000 federal grand jury cases in 2010, only 11 were declined.

The Michael Brown case was different, because the prosecutor involved didn’t really ask for an indictment. Instead, he turned the grand jury into a makeshift trial of sorts, with no side honestly advocating on behalf of the victim. And so he got the result he wanted; the officer was not charged and the result had a thin veil of legitimacy because some kind of legal process occurred.

The case of Eric Garner followed a similar path. After an incredibly incriminating video of his killing circulated, a grand jury process was conducted, and no charges were filed. The grand jury records in that case remain sealed, so no one knows for sure whether the prosecutor completely phoned it in for that case. But the statistics above, and the appalling nature of the video, make it more likely than not. It also doesn’t help matters that the prosecutor charged with overseeing the case, Dan Donovan, decided to launch a successful bid for Congress shortly after the decision. Cynics could be forgiven for suspecting politics were involved in the non-prosecution of Eric Garner’s murder.

Other examples could be cited as well. The picture they paint is not a pretty one. At least in this area, it appears that public prosecutors have consistently failed. The police officers involved do not get punished (which may or may not be appropriate), and the overall process lacks enough legitimacy to satisfy the public that justice was served and the rule of law exists. So police brutality continues to occur, the protests continue apace, and more recently, some troubled individuals even resorted to killing individual police officers to exact some kind of collective punishment. In short, the current system is working for no one, except the few officers who commit crimes and get away with them.

The Remedy of Private Prosecution
Now consider the remedy that allowing private prosecution in these cases could provide. The victim’s family and supporters would hire a reputable attorney that they trusted, and the attorney’s sole job would be to pursue justice for the victim, as it should be. That would probably mean aggressively prosecuting the officer involved to the fullest extent of the law. Some cops may ultimately still walk free in some cases as the laws themselves are very favorable to officers. But the final outcome from a private case would be far more legitimate than the ones we’ve seen so far, because the central conflict of interest has been removed.

It’s also likely that removing the conflict of interest will lead to more cops getting successfully prosecuted and convicted. This, in turn, would influence police behavior for the better. Cops currently face very little risk of prosecution for excessive force, as the cases cited at the beginning of this piece amply prove. In this environment, we should not be surprised excessive use of force is commonplace. But as the threat of punishment becomes credible, we should expect the situation to improve. After all, our justice system is based significantly on the idea that punishment deters criminal behavior. If we believe that is true for private citizens, we should expect it to be true for police officers as well.

Many proposed solutions to police brutality implicitly acknowledge the conflict of interest problem that exists currently. But rather than propose outright private prosecution, they typically envision a special prosecutor, still funded and selected in some way by the government. This is likely to be an improvement over the current system, but it is inferior to the private solution for a few reasons.

First, allowing private prosecution doesn’t cost the government any additional money–in fact it actually saves money. This means it immediately bypasses one possible legislative hurdle. Second, it confers a greater sense of legitimacy and independence on the prosecutor if the victim’s advocates have a direct role in selecting the prosecutor. Finally, special prosecutors are appointed to all kinds of things in government (like torture, for example) without consistently producing legitimate results, so it’s not obvious that police brutality would turn out differently.

One possible objection to the solution I’ve outlined is that poor people wouldn’t be able to afford a private prosecutor. This is a legitimate concern given that many of the victims of police brutality are poor in addition to being minorities. However, the intense focus on this issue of late suggests that these cases could attract top lawyers to prosecute them, either on a pro-bono basis or with donations. Even if that didn’t materialize in a specific case, the victim would be no worse off than they are now. In the absence of a private prosecutor, the government would handle the prosecution as they do currently.

Summary
Police brutality is an issue that has plagued the US for some time. While there are many different aspects of the legal system that contribute to this problem, nothing is more central than the conflict of interest between the public prosecutors and the police department. If everything else was fixed and this went unchanged, police brutality would still occur and the perpetrators would still get away with little sanction.

Allowing private prosecution in these cases is a simple and costless remedy that can begin having a positive impact immediately. By increasing the probability of conviction for excessive force, it will create a powerful disincentive for officers to resort to those tactics unless it is absolutely necessary. By removing the conflict of of interest, the resulting legal outcomes will have a level of legitimacy and fairness that the current situation desperately needs. And by letting victims and their families choose an independent and competent advocate in the courtroom, it will at least give them a fighting chance at obtaining justice, a chance they do not currently have.

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