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Friday, September 12, 2014

Federal control of all police prosecutions?

Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the  best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.

But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."

First, the problem  in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not)  if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.

Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.

So this proposal makes sense only if the idea really is that police shootings  should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option.  I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.

The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.

Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?

Posted by Howard Wasserman on September 12, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Thanks for your comments on my piece, Howard. I agree with you that the Zimmerman example was tangential; it was only meant to illustrate that there is precedent for federal prosecutors taking on state cases, certainly not to argue that they should handle "all high profile cases." I am not certain that having the feds prosecute local cases is the best solution, but I certainly am less concerned about U.S. Attorneys' abilities to learn state law than I am about the many conflicts faced by local DAs; and I am not certain that bringing in another state prosecutor addresses the conflict clearly enough in all cases. So, having the feds as one possible option, even when the case should be brought under state law, makes a lot of sense to me.

Posted by: Kate Levine | Sep 12, 2014 1:17:27 PM

Howard writes: "how are federal prosecutors competent or appropriate to make charging decisions under state law? . . {f}ederal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state"

I agree re the objection to appropriateness. With that said, I'm not persuaded about the competence point. The substantive criminal law of the state normally requires no "special knowledge of the law" to figure out. As for procedure, it depends: I'll guess that the local U.S. Attorney's Offices has some former state prosecutors.

Posted by: Orin Kerr | Sep 12, 2014 11:58:04 AM

Oops, yeah, wrong link. Thanks.

Posted by: Howard Wasserman | Sep 12, 2014 10:33:12 AM

I think you may have meant to link to this article by Kate Levine, published yesterday in Slate: http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/local_prosecutor_bob_mcculloch_should_not_be_the_one_to_decide_whether_to.html

Posted by: JLS | Sep 12, 2014 9:58:10 AM

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