How We Prosecute the Police

Source: Kate Levine, New York University School of Law, Public Law Research Paper No. 15-55, October 30, 2015
(not available for download)

From the abstract:
Police brutality is at the center of a growing national conversation on state power, race, and our problematic law enforcement culture. Focus on police conduct, in particular when and whether it should be criminal, is on the minds of scholars and political actors like never before. Yet this new focus has brought up a host of undertheorized questions about how the police are treated when they become the subject of criminal prosecutions.

This essay is part of a larger project that examines the ways in which criminal procedure is different for the police than other suspects. Here, the focus is on the seemingly special pre-charge and pre-indictment process police receive. Prosecutors have the discretion to investigate cases before charging or to present robust cases to grand juries for any suspect. Yet, most charging decisions are reflexive and uninvestigated. Similarly, most grand jury hearings are dominated entirely by prosecutors who present one-sided, highly curated versions of events. As we have seen repeatedly, however, when police liberty is on the line, these processes change: prosecutors do thorough pre-charge investigation and they present a full account of an accusation, including exculpatory evidence, to grand juries.

This extra criminal procedural process for police has led to what many see as a lack of criminal accountability. In response, scholars and politicians have called for prosecutors to treat the police more like other suspects: to strip police of the pre-charge/pre-indictment process they receive. Yet, counterintuitively, the reverse solution may be far more powerful: prosecutors should extend the pre-charge and pre-indictment process they give police to all criminal suspects. A host of reformative possibilities would flow from more careful investigation and evidence-weighing before a criminal suspect is charged or indicted. Moreover, reallocating resources to this important moment in the criminal justice process could reduce the untenable costs of our overburdened system.