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Tuesday, February 10, 2015

Public Defenders as Prosecutors?

I want to continue to think about how we should handle criminal cases involving police misconduct, particularly (though not only) police-involved killings. The core problem, obviously, is that local DAs need the cooperation of local police, making it hard for the DAs to vigorously prosecute office misconduct. The failure to secure indictments in the Michael Brown and Eric Garner cases highlighted this problem.

In my previous two posts, I considered some of the limitations with Wisconsin’s solution, namely relying on outside investigators to provide local DAs with a report, and with what New York’s AG wants, namely a special police-focused prosecutorial unit in the state AG’s office.

But criticism is easy. If I have problems with the Wisconsin and New York plans, what would I recommend?

I want to suggest something fairly radical, which I haven’t seen anywhere in the debate. There could be a host of reasons why this is impractical politically, or why implementation could never work, etc. etc. But that’s the great thing about a blog: you can float a trial balloon and see if it is filled with helium or lead.

What if we created a special police-misconduct prosecutors office in the public defender’s office?

I admit that this might sound a little implausible, but the more I’ve thought about it, the more appealing it seems to me. Or, at the very least, thinking about it this way highlights the very real challenges creating an effective police-violence prosecution unit faces.

So what are the benefits of relying on public defenders to prosecute police cases?

1. It solves the problem of confirmation bias/personal investment. Unlike prosecutors, public defenders work against the police. So they lack the inherent inclination to believe them (that’s the confirmation bias part), and they don’t have to worry about jeopardizing on-going relationships. Of course, the problem could run the other direction, that they overestimate the likelihood the police are guilty and go to trial too often. But my data-free gut instinct is that “net” confirmation bias would drop. Regardless, the beyond a reasonable doubt standard should protect police from excessive PD zeal. 

2.  Not only does relying on PDs eliminate the problem of attacking people needed to do one’s job, but it addresses the internal promotion problem as well. A prosecutor who effectively prosecutes police will likely face limited promotion options: no one is going to become a top senior DA based on the number of police sent to prison/disciplined/etc. But those internal incentives switch in a PD’s office. The public defender who aggressively defends defendant/civilian interests by targeting police misconduct is doing exactly what the office seeks to do.

3.  More broadly, calling on PDs to handle these cases likely creates a better alignment with underlying senses of purpose. In a system that has almost no jury trials, PDs already see their job as providing one of the few meaningful barriers between criminal defendants and the power of the state. Punishing criminally-malfeasant members of that state seems consistent with that goal not just doctrinally, but also conceptually. PDs have already voluntarily taken on the unpopular job of representing those disliked by society. Defending the unpopular seems to be a close parallel to prosecuting the popular.

4.  Asking PDs to prosecute police misconduct also seems to solve a major information problem that all the other proposals ignore. The entire conversation about outside prosecutors has focused on a single issue: how to handle police-involved killings. And these cases are easy to identify: they quickly go public, and a killing can’t not be reported (in general). In a future post, though, I want to think about other types of police offending that merits formal prosecutorial response, such as aggravated assault or (perhaps more for prison guards) rape. And here information about the offense becomes trickier to uncover.

How would, say, the AG unit based in Albany or Sacramento know about these cases? Who would refer them to the AG? Who would screen the claims in the AG’s office, and how would they know which claims are viable/legitimate? Compare that to a system where the PD representing the defendant need only go down the hall to the PD unit handling police abuses and say “my client claims he was beaten senseless while handcuffed. And I believe him because….” Information flows are faster and easier, and the social networks of PDs provides a ready screening mechanism.

All that said, several concerns jump to mind:

1.  PDs are already over-worked and under-funded. Now I’m dumping even more work, and politically unpopular work at that, on them. Do we think that state legislators will provide sufficient additional funding to ramp up such offices? The AG’s office has a lot more political clout, and it has the political “cover” of not just representing the “bad” guys (and now going after the “good” guys), so it could likely fund such an office much better than the PD could.

2. Along the exact same lines, PD offices may be concerned that effectively prosecuting police will lead to budget cuts, for the very purpose of shutting down such actions. 

3. A lot of PDs may feel that everyone deserves to be protected from punishment by the state, even state actors who violate the law. So calling on PDs to prosecute even these sorts of cases may not align as well with underlying preferences as I suggest above.

4. This approach doesn’t work so well for cases of non-lethal police abuse involving people never arrested, since these victims never raise their claims to PDs. But then neither does the AG approach, so this more indicates that this proposal isn’t perfect (really??), not that it is worse than the alternatives.

Now, all this said, I don’t actually expect to see bills start moving forward in state legislators to set up PD Prosecution Units, although it would be great if they did. But hopefully at the very least by highlighting how well-incentivized PDs would be to handle these police-involved cases, this points out the incentive challenges that arise when we ask any sort of prosecutor to manage them.


* The immediate rebuttal here is that BRD does not often appear to protect defendants in a world of plea bargains. But I think police defendants would be qualitatively different than the usual criminal defendant. They have a better understanding of the law, they will almost certainly make bail (between police union fundraising and likely more-favorable treatment from judges—and thus lack the incentive to plead to time served), and they will have solid representation. For defendants like this, BRD likely has a lot of oomph.

Posted by John Pfaff on February 10, 2015 at 11:40 AM in Criminal Law | Permalink


After reading about some of the interaction between local police forces and federal prosecutors in the context of civil forfeitures (in the wake of Holder's changes), I don't think that they are far enough from the subject to be objective third parties.

Posted by: brad | Feb 12, 2015 3:05:15 PM

Apologies if you covered this in a previous post and I missed it, but I'd also be curious to know what you think of having federal officials at the Department of Justice act as special prosecutors in these circumstances.

I take it there's a general sense that it doesn't work well enough, but if that's so I'd love to hear thoughts on why and what might be done to change that.

Posted by: Will Baude | Feb 12, 2015 8:58:42 AM

3 is a more significant problem than you suggest, I think. While acknowledging the difficulties around generalizing about such a large, heterogeneous group of people, my sense is that PD feelings on prosecuting cops are far more conflicted than you suggest. While they definitely object to the injustice of cops getting due process rights that their clients can't even dream of, that doesn't mean they actually want the cops to rot in prison, when it comes down to it. I suspect that if cops ever actually had the full weight of the state come down on their heads, most PDs would identify more with the defense attorneys than the prosecutors.

I'd add a problem 5, also: specialization. Criminal prosecution is a different skill from criminal defense. They're not interchangeable practice areas, even if there are some people who can do both. What you'd really need to make this work is a special unit of prosecutors inside the PDs office. That may be sustainable in a major city like Chicago or New York, but even there the prosecution unit would have far fewer cases than the rest of the attorneys in the office. And I really don't think you want people acting as PDs and prosecutors simultaneously to even out the case load.

As ridiculously common as police misconduct is, in absolute numbers it's still rare enough (especially the kind that has any plausible chance of being prosecuted) that I don't think you can really have people devoted to it full time except at the state level. And I don't think making PDs into part time prosecutors makes much sense at all.

Posted by: Andrew MacKie-Mason | Feb 12, 2015 1:03:06 AM

I fail to understand what advantage would be had by committing these prosecutions to PDs instead of simply permitting private prosecutions.

If the state DA is conflicted out, private lawyers (probably the same ones who are already handling the victim's inevitable battery/wrongful death/Section 1983 claim anyway) can step in. Doesn't suffer from any of the four problems you mention.

Posted by: Paul Thomas | Feb 11, 2015 11:57:14 PM

For one example: In New Jersey, child-welfare investigations involving child-welfare workers are investigated outside the agency by a unit inside of the Public Defender's Office. I don't know how it works, but this is one example.


Posted by: SM | Feb 11, 2015 8:37:51 PM

Good idea. Maybe we can get those Bronx PDs from the pro cop-killing rap video.

Posted by: Think Like a 1L | Feb 10, 2015 12:05:15 PM

Public defenders could have a conflict of interest problem unless they're from a significantly removed jurisdiction. (Otherwise, they'll have clients whose cases are affected by the same cops/supervisors/issues.).

Posted by: Full disclosure | Feb 10, 2015 11:47:39 AM

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