When police kill unarmed civilians, the path towards accountability begins with prosecutors. Elected to serve their communities as the chief law enforcement official, they have the means and mandate to confront the injustices that arise from systemic racism, writes the director of John Jay’s Institute for Innovation in Prosecution.
As California Attorney General Xavier Becerra begins overseeing the investigation of the killing of Stephon Clark, the 22-year-old African-American father of two shot by police in his grandmother’s backyard in Sacramento, Ca., nearly two weeks ago, an important question should be on the minds of every American.
If the investigation finds evidence of misconduct, how likely is there to be a charge, let alone a conviction?
The track record of officer-involved fatalities in the United States suggests the answer: Not likely.
Approximately 1,000 lives are lost at the hands of U.S. law enforcement every year, a number that has remained remarkably consistent. Every week, there are new reports of officer-involved fatalities from across the country. Earlier this week, the New York Police Department shot and killed a man in Brooklyn.
And still, over the course of a decade, from 2005 to 2015, only 54 officers nationwide were criminally charged, with nearly half of these cases resulting in acquittals or dismissals.
How can that be when, in most of these cases, there is ample evidence—hard data, and even live video—of the extent of force used?
This paradox was addressed recently by 35 experts participating in the launch of a new working group on officer-involved fatalities at the Institute for Innovation in Prosecution (IIP) at John Jay College of Criminal Justice. Comprised of prosecutors, directly impacted individuals, police, academics, and activists from around the nation, the group was formed to address the prosecutor’s role in dealing with these incidents—and in particular to devise and implement mechanisms of accountability.
Such an effort couldn’t be more crucial.
Prosecutors wield significant power in the criminal justice system. They have discretion over charging, pre-trial recommendations and plea conditions, and their decisions affect a case at nearly every stage of the criminal justice process. Yet, as the figures cited above demonstrate, even with this significant power, prosecutors have found it challenging to charge and convict police officers for excessive use of force.
The working group identified various obstacles to accountability. For example, most state statutes require a “standard of reasonableness” when evaluating the use of force by law enforcement. Another example: the public, the media and, often, jury pools are inclined to offer the benefit of the doubt to law enforcement while criminalizing those killed. Moreover, the process is stymied by systemically racist policies and practices, and a culture that impedes transparency.
The working group—including the prosecutors and police who participated—took these challenges as opportunities for reform, rather than as excuses.
There was widespread consensus that, as communities demand justice for the victims and families of police violence, prosecutors—as democratically elected officials directly accountable to the communities they serve—have the opportunity and the mandate to use their platform to demand accountability, both within the legal system and beyond it.
To do this, prosecutors must partner with those whose deep awareness of the absence of accountability can show the path forward. In other words, those who have lost loved ones to police violence.
As one directly impacted family member said during the working group discussions, “We become the experts unwillingly …We study this because we can’t sleep at night.”
That tragic “expertise” has motivated the victims of police violence to address the systemic inequities of the criminal justice system. We should join them.
Communities, particularly communities of color, that are disproportionately affected by excessive police use-of-force tend also to be those bearing the brunt of policies and practices that contribute to mass incarceration. The over-criminalization of communities of color cannot be separated from the disproportionately high rate of force that these communities experience at the hands of law enforcement.
Philando Castile was stopped in his car nearly 50 times before July 6, 2016. Eric Garner was reported to have been selling individual cigarettes when the police were called on July 17, 2014, though the cigarettes were never found.
According to Baltimore Police Department (BPD) data from January 2010 to May 2015 that the U.S. Department of Justice examined, BPD officers stopped 410 pedestrians at least 10 times. Some 95 percent of these pedestrians were black, although just 60 percent of the city’s population is black.
If officers did not routinely stop—and if prosecutors did not routinely charge—people of color for crimes that arguably pose no significant risk to public safety, perhaps we could expect fewer fateful encounters.
And if law enforcement did not routinely stop and prosecute people of color, perhaps they would stop feeding the myth of the “inherent danger” that people of color pose to public safety.
The belief in this inherent danger is tied to an implicit bias that is manifested in a variety of ways.
“Black male, maybe 20,” is how the Cleveland officer referred to Tamir Rice after he arrived at the playground and shot the 12-year-old within seconds of seeing him brandish what later proved to be a toy gun.
The two Sacramento officers who shot Stephon Clark explained afterwards that they “fear[ed] for their safety.” Responding to reports of someone breaking into parked cars with a toolbar, they described Clark as advancing towards them with an “object” in his hand. The officers fired ten rounds each at him. The object was a cell phone.
The racial stereotyping that leads police to automatically assume the worst when they are involved in a tense confrontation with individuals of color surprised none of the members of the working group.
As a directly impacted family member observed during the working group discussion, “We have to say Black Lives Matter today because of this country’s history … The legacy of the Three-Fifths rule is [evident] in how we are [criminalized, and how no one is held accountable] when our lives are taken.”
One conclusion seems inescapable: The path towards accountability for officer-involved fatalities and excessive police use of force must move beyond body cameras and de-escalation training to confront the injustices that arise from systematic racism, both past and present.
As the chief local law enforcement and democratically elected official, a prosecutor has both the means and the mandate to do just that.
There already are instructive examples around the nation:
- In Washington State and California, prosecutors are using their platforms to support calls for reform of the “standard of reasonableness” statutes.
- Campaign Zero, whose website describes it as a “research collaborative collecting comprehensive data on police killings nationwide to quantify the impact of police violence in communities,” harnesses the power of data science to develop new policies and practices in partnership with police departments.
- Leaders of a Beautiful Struggle, in Baltimore, offers useful suggestions for exploring alternative paths to accountability by using independent community-centered tools.
And lessons are being learned even in those cases where justice has yet to be found.
The jury in the Philando Castile case did not convict the officer who was charged with killing him. But the investigation and prosecution, led by County Attorney John Choi of Minnesota’s Ramsey County, provided vital lessons for the field.
Choi, who participated in the working group discussion, was asked by the mother of a victim of police violence about his continuing relationship with Castile’s family. He responded with an anecdote.
After the trial, Castile’s mother presented Choi with her son’s “Certificate of Class Completion” for a driving-diversion program established to help those whose licenses had been suspended due to unpaid fines and fees drive legally again. The program was launched when Choi had been Saint Paul’s City Attorney.
Showing the group a picture of the driving certificate, Choi said he lamented the fact that, while he had been able to help Castile in one aspect of the justice system, he was ultimately unable to achieve justice for him, his family, and his community in his death.
It’s the kind of humility and compassion that can help prosecutors build–and fight for–means of accountability that recognize the humanity and dignity of victims, families, and communities directly affected by police violence.
Prosecutors have the platform. And they are starting to use it.
Meg Reiss is executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes comments from readers.