Making their cases for prosecuting bad cops
Local prosecutors are the best people to defend their communities
Recent proposals from Annapolis and elsewhere suggest that the power to prosecute police should be removed from local prosecutors and placed in the hands of “outside prosecutors” such as state prosecutors or attorneys general. In Maryland, that would mean taking police misconduct cases away from prosecutors like Baltimore City State’s Attorney Marilyn Mosby, a zealous defender of racial equity who has secured many convictions of police officers, and handing them over to a politicallyappointed state office with no record of combating police violence or misconduct.
Outside prosecutors are certainly needed in the fight for police accountability and should step in when local prosecutors fail to address police misconduct. But often local prosecutors are best equipped to address abuses in their own communities — and we must be wary of proposals that would undermine, even threaten, the ability of communities to hold police officers accountable.
As former federal prosecutors with decades of experience in police misconduct cases and reforms, we have seen local prosecutors fail to hold officers accountable for dishonesty or excessive force. Sometimes these failures result from lack of will: Police unions are powerful forces and can undermine prosecutors who demand accountability. Other times, prosecutors fail to act because of close relationships with police departments, officers’ refusal to cooperate, lack of prosecutorial resources, skeptical judges and juries, or state laws that impede prosecuting misconduct.
A mandate transferring responsibility for police misconduct cases to “outside prosecutors,” however, won’t cure these problems. Instead, it creates additional concerns by inserting prosecutors who don’t know the local landscape and aren’t versed on pursuing cases in that jurisdiction. And while there are times when federal engagement may be desired, narrow federal jurisdiction and recent political interference in federal cases prevents this from being a consistent solution.
Communities entrust elected prosecutors with investigating elected officials and handling high-profile local crimes. There is no reason to automatically remove them from equally sensitive prosecutions of local law enforcement, as long as key protections are in place. These cases should be handled by an independent unit, staffed by senior prosecutors and experienced investigators, and report directly to the elected district attorney. The police department should not be involved in investigating its own officers. And, in instances where the district attorney decides not to pursue charges, there should be full disclosure of the basis of that decision and a second look by an independent body.
These protections exist in Baltimore. Ms. Mosby created the Public Trust and Police Integrity Unit, made up of experienced attorneys who can objectively investigate and prosecute cases against police officers. The Baltimore state’s attorney’s office also provides the public with detailed explanations when it declines to prosecute any officer accused of excessive or inappropriate use of force.
Some federal and state proposals would empower state prosecutors or attorneys general to take over investigations into all police-involved deaths or misconduct. But the presumption that a state-level actor would be more willing — or able — to hold law enforcement more accountable than a local prosecutor is unfounded.
We have seen too many state officials attempt to exert prosecutorial control as political retribution against district attorneys who have championed reform. In Missouri, the attorney general, a vocal critic of St. Louis City Circuit Attorney Kim Gardner, is fighting to prevent her from overturning wrongful convictions. When Orlando State’s Attorney Aramis Ayala rejected the broad use of the death penalty, the governor and attorney general pursued a vicious political fight to strip her of capital cases. A similar dynamic played out between Ms. Mosby and Governor Larry Hogan, after he proposed creating a team of prosecutors in the attorney general’s office to take homicide, gun and drug cases away from Ms. Mosby, who Mr. Hogan deemed too soft on crime. As these and other examples demonstrate, state-level leaders are often far more regressive on criminal justice policy than their locally-elected counterparts — who are directly answerable to communities most impacted by these concerns. Vesting state leaders with the sole authority to address police misconduct too often portends even less accountability.
State-level leaders do have a role to play in police accountability — they can be an important fail-safe if local leaders decline to engage. But as millions march in the street demanding a voice in re-imagining policing and the justice system, a power grab sidelining local district attorneys elected to promote justice in their community misses the mark. Instead, by working to strengthen independence in elected prosecutors’ offices, we can advance accountability and more fair and just communities nationwide.
Roy L. Austin Jr. (raustin@hwglaw.com) is a partner at Harris, Wiltshire & Grannis, a former deputy assistant to President Obama for the Office of Urban Affairs, Justice and Opportunity and a former deputy assistant attorney general in the civil rights division of the Justice Department. Miriam Aroni Krinsky (krinskym@krinsky.la) is the executive director of Fair and Just Prosecution, a former federal prosecutor and also served as the executive director of the Citizens’ Commission on Jail Violence.