HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
Local Criminal Prosecution
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Local prosecutors (district, county or state's attorneys) may prosecute police officers who engage in behavior, on- or off-duty, that violates the law. When officers are prosecuted, it is usually under state law for crimes such as murder, manslaughter, assault, battery, or rape. Comprehensive statistics on prosecution efforts, reasons for prosecutorial decisions, or prosecutorial success rates are generally not available to the public. But our investigation leads us to conclude that local prosecutions of police officers on charges relating to the excessive use of forceare rare.173 Without information about the number of cases prosecuted against police officers, which does not appear to be maintained routinely by district attorney's offices or their clerks, it is impossible to know with certainty whether cases are being appropriately handled by local attorneys (and, consequently, whether federal prosecutors need to initiate their own investigation).

Experts have noted that because criminal prosecutions of officers are difficult, they frequently do not succeed in improving human rights practices. Police abuse experts warn, "When we try to use criminal law as a substitute for standards that should be applied within a profession or occupation, we almost invariably are disappointed with the results."174 Even in cases where federal officials do actively investigate, "police brutality cases are incredibly difficult to prove in court," according to Steven D. Clymer, law professor at Cornell University. "Historically, most jurors have had a presumption in favor of the police officers. In most cases, jurors go into a case looking for reasons to convict. In police misconduct cases, they are searching for reasons to acquit."175 Prosecutors, therefore, are hesitant to bring cases against police officers that are difficult to win, while one reason for the difficulty in successfully prosecuting officers may be the rarity of such efforts, causing jurors to disbelieve allegations of criminal activity that differ from their typical image of police officers.

Among the reasons prosecutors may choose not to pursue a case against a police officer accused of abusive behavior are:

  • the traditionally close relationship between district or county attorneys and police officers who usually work together to prosecute other alleged criminals;

  • difficulties in convincing grand juries and trial juries that a police officer did not merely make an understandable mistake, but committed a crime;

  • special proceedings that, in some jurisdictions, provide additional protections for police officers accused of criminal behavior; and

  • lack of information about cases that could be prosecuted or systems for reviewing possibly prosecutable cases.

There is a natural conflict of interest when district attorneys - who typically work closely with the police to bring cases against suspected criminals - are faced with prosecuting those same officers. District attorneys count on officers' testimony to support their cases during trials of alleged criminals. There is a particular reticence in bringing charges against officers who have been "productive" and who have worked closely with the district attorney's office. In some jurisdictions, district attorneys are elected and are aware that the powerful police unions and their supporters may withdraw their support if a police officer is prosecuted.

Prosecutors are also aware of juries' tendency to support the police. Even with apparently foolproof cases against police officers, juries have often been reluctant to find officers guilty of criminal conduct, particularly when the incident occurred while they were on duty. Because cases against police officers are usually difficult to win, prosecutors contend that it is best to pursue only the cases with the greatest chances of conviction. Of course, by only pursuing rare, overwhelmingly strong cases, the deterrent effect of criminal prosecution of officers is undermined significantly. Prosecutors contend that trying, and losing, a case against an officer is a worse signal to send to officers, and the affected communities, than not trying the case at all.

In explaining her office's low rate of prosecution of officers, the Philadelphia district attorney argued that the problem with criminal prosecution of officers is that if they are acquitted (after being suspended or dismissed), they almost always avoid additional discipline or win back their jobs through arbitration. For this reason, her office will pursue only exceptionally strong cases.176 In New York, despite scores of fatal shootings during the past twenty years, no officer was convicted on homicide charges for an on-duty shooting between 1977 and 1995.177

In Atlanta, the spokesperson for the Fulton County district attorney's office told Human Rights Watch that he could recall only three cases that his office had prosecuted against police officers during the previous five years.178 He stated that few excessive force cases reach the stage of charges being filed because they seem to "wash out" with the Atlanta police department's internal affairs unit. He attributed this tendency to "the police looking out for themselves."179 New Orleans, despite a police force renowned for abusive behavior, has seen few criminal prosecutions of officers who have committed human rights abuses. When cases go before the grand jury, officers are frequently cleared. When the district attorney has been questioned about the lack of prosecutions, he has blamed the police department for the troubled force.

In some jurisdictions, the special procedures used in indicting or prosecuting an officer may help him or her avoid indictment or conviction. In Georgia, state officials (including police officers) are allowed to be present with legal counsel during grand jury proceedings, and the defendant officer may make a statement to the jurors after the state presents its evidence.180 Normally, defendants are not present during grand jury proceedings (except during their own testimony), are not allowed to have a lawyer in the courtroom, and are not allowed to make concluding statements.

There is a lack of communication between prosecutors and agencies with information regarding possibly criminal police abuse. Internal affairs units submit cases to prosecutors in an ad hoc, arbitrary manner. When questioned by Human Rights Watch, most internal affairs units' representatives were unable (or unwilling) to provide even an estimate of how many cases they had submitted to local prosecutors involving excessive force by the police department's officers. Some internal affairs staff mistakenly believe that they must decide whether a case could be prosecuted successfully before providing it to local prosecutors instead of submitting any evidence regarding a possibly criminal act, while others simply lacka system for routinely submitting cases that may require criminal prosecution.181 Internal affairs divisions are often reluctant to push for criminal prosecution of fellow police personnel, while prosecutors rarely insist on learning of all possibly criminal behavior on the part of officers. As a result, prosecutions are often fueled by press attention to particular cases rather than a regular review of cases that may require further action.

Furthermore, district attorneys' offices themselves do not appear to compile information relating to the prosecution of police officers. Human Rights Watch contacted district attorneys' offices for the cities examined in this study, and only Portland and Minneapolis kept a log of criminal cases in which police officers were defendants. None of the others knew, or would disclose, how many police officers had been prosecuted by their offices during the past several years. Each claimed that that information must come from the relevant internal affairs unit. Yet internal affairs units contacted are typically unwilling, to provide this information.

Citizen review agencies, despite receiving hundreds or thousands of complaints about police officers annually - some alleging clearly criminal behavior - have little or no contact with local prosecutors. When interviewed by Human Rights Watch, most representatives of citizen review units claimed their mandates did not include dealing with prosecutors, yet acknowledged nothing precluded them from passing particularly serious allegations to relevant prosecuting agencies. Most assumed that internal affairs units worked closely with prosecutors and would raise any cases of concern. As a rule, citizen review agencies that publish reports do not include any information about the agencies' dealings with prosecutors.

It is clear that local prosecutors should prosecute far more cases against criminally abusive police officers. When members of the force are successfully prosecuted, it sends an important signal to fellow officers that there will be serious repercussions for abusing their authority. It also sends a message to internal affairs units that may be lax in dealing with officers who commit abuses to do more to hold officers accountable. Finally, successful prosecution of officers who commit human rights violations, and even clearly vigorous prosecutorial attempts that fail, send a signal to the community that prosecutors are attempting to uphold the law.

173 Human Rights Watch attempted to compile statistics from relevant prosecuting agencies in the cities examined. Telephone inquiries, May 13 and 14, 1997 and June 3, 1997. We were repeatedly referred to police departments to obtain these statistics and told that prosecutors "don't track cases that way."

174 Jerome H. Skolnick and James J. Fyfe, Above the Law, (New York: The Free Press, 1993), p. 198. Please note that there are two books with the title of Above the Law cited in this report. David Burnham is the author of the other Above the Law, cited below.

175 Mark Curriden, "When good cops go bad," ABA Journal, May 1996.

176 Gammage and Fazlollah, "Arbitration offers a route ..," Philadelphia Inquirer.

177 In 1992, prior to the 1995 merging of the New York City Housing Authority with the NYPD, Housing Authority police officer Jonas Bright shot and killed Douglas Orfaly, and in 1995 was convicted of criminally negligent homicide. More recently, in May 1997, New York City transit officer Paolo Colecchia was found guilty of second-degree manslaughter in the fatal July 1996 shooting of Nathaniel Levi Gaines, Jr.

178 Telephone interview with Melvin Jones, Fulton County District Attorney's office, April 1, 1996.

179 Ibid. It is worth noting that the Atlanta Journal-Constitution and the internal affairs unit of the Atlanta police force have reported that files regarding police shootings sent to the district attorney's office in recent years have been "lost," which may help explain the lack of action in such cases.

180 Official Code of Georgia Annotated (O.C.G.A.) Title 17-7-52, which refers to Title 45-11-4, describing special grand jury procedures for public officials.

181 The January 1997 report by the Los Angeles Police Commission's Office of the Inspector General report, for example, found that the LAPD's Internal Affairs Division (IAD) was not sending all possibly criminal cases involving police officers to prosecuting agencies, because they claimed prosecutors objected to reviewing anything but "good cases"; the IAD therefore submitted only what it believed to be "good cases" rather than forwarding those with prima facie evidence of criminal wrongdoing. Inspector General's report, p. 45.

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© June 1998
Human Rights Watch