Prosecutors and Police Killings: The Limits to Wisconsin's Innovative Solution

Despite all the attention being paid in recent years to the problems of large-scale incarceration in the United States, no one really focused on the behavior and incentives of prosecutors; even the National Research Council’s giant report on incarceration ignored them. But that all changed with the killings of Michael Brown in Ferguson, Missouri, and Eric Garner on Staten Island, and the failure of the local prosecutors to indict Officers Darren Wilson and Daniel Pantaleo.

So at least one issue involving prosecutors is now receiving national attention: how to properly prosecute police-involved killings.

The problem with asking local prosecutors to handle police-involved killings is obvious. The prosecutors need the police to bring them good cases. If the prosecutor and police don’t have a good relationship, the police can simply refuse to work with the prosecutors. And prosecuting police is surely one way to end up with a bad relationship.

This isn’t navel-gazing hypothesizing. Prosecutors already have a uneasy relationship with police. Just consider this New York Times headline: “In Unusual Collaboration, Police and Prosecutors Team Up to Reduce Crime.” Or consider Dan Richman’s account of how Harry Connick, Sr.’s (yes, Jr.’s dad) effort to reform plea bargaining while the district attorney of New Orleans was thwarted by the NOPD’s refusal to work with him.

Moreover, and less cynically, prosecutors may be unwilling to press charges simply because they are inclined to believe the officers, and confirmation bias can exert a powerful pull at this point.

So what’s to be done? The only state to take any legislative action on this issue is Wisconsin, which passed a law in April 2014 requiring the state attorney general to establish an independent review panel, comprised of a retired judge, a former senior sheriff or police official, an assistant AG, an academic (!), and a former ADA or AAG. The panel hires outside investigators to review police-related killings, and reviews the report in an open hearing.

At that point, though, the panel makes recommendations to the local prosecutor about what to do next. And the first time the law was used? Despite the fact that the police department fired the officer involved, the local attorney general declined to press charges, claiming that he felt the use of force was acceptable. Not necessarily all that surprising.

Wisconsin could alter the law to refer the case to an outside prosecutor. The simplest way to do this would be to remove the case to another jurisdiction: prosecute the case somewhere else in the state. That way the prosecutor isn’t still trying to convict the officers he has to work with.

But this faces two serious problems. First, and more obviously, I feel like the problem we currently face and that Wisconsin still faces is less that of the local prosecutor but of the local prosecutor. In other words, even an outside DA is likely disinclined to press charges, whether out of general sympathy for/belief in the officers, or because charging hard at outside officers will still anger those in his own jurisdiction that he has to work with. What upside is there to a prosecutor in Buffalo aggressively charging police officers from New York? That will surely anger the BPD.

Second, and less obviously, most police-involved killings are likely to take place in urban jurisdictions; almost by definition, such cases would have to be removed to less-urban counties. But less-urban counties are also more likely to be increasingly white and conservative—both prosecutors and juries in such areas may naturally hold more-favorable views of the police than those in the county where the shooting took place. So transfer may actually reduce accountability. 

So can we improve on these options? In my next post I want to look at the possible role of the AG, but I’m skeptical here as well. After that, I’ll consider a rather outside-the-box option that no one seems to be discussing, and which very well might be politically impossible, but which I think gets to the real heart of the problem here (which is not so much the local as it is the prosecutor).